2. Mr Humza Yousaf
MR HUMZA YOUSAF (sworn).
Questions From Lead Counsel to the Inquiry for Module 2A
Lady Hallett: I appreciate the other demands on your time, obviously, and I can guarantee you that everyone is under strict instructions we’ll finish by 4.30 at the latest.
The Witness: Thank you, my Lady.
Mr Dawson: You are Humza Yousaf?
Mr Humza Yousaf: That is right.
Lead 2A: You have helpfully provided two statements to the Inquiry, if we could just look at these, the first is INQ000273956. It’s a statement dated 2 November 2023. Is that your statement?
Mr Humza Yousaf: That is.
Lead 2A: Have you signed the statement?
Mr Humza Yousaf: I have.
Lead 2A: Can you confirm to her Ladyship that the contents of the statement remain true and accurate as at today’s date?
Mr Humza Yousaf: I can confirm that is the case.
Lead 2A: You provided a second statement, I understand, dated 16 November 2023; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: It’s under reference INQ000273973, is that your statement?
Mr Humza Yousaf: That is.
Lead 2A: Have you signed the statement?
Mr Humza Yousaf: I have.
Lead 2A: Do the contents of that statement remain true and accurate as at today’s date?
Mr Humza Yousaf: They do.
Lead 2A: Thank you.
You are the current First Minister of Scotland?
Mr Humza Yousaf: That’s correct.
Lead 2A: You explain in your statement that you are responsible for leading the Scottish Government with the support of Cabinet secretaries and ministers; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: You became First Minister on 29 March 2023, taking over the role from former First Minister Nicola Sturgeon; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: During the course of the pandemic, you held two Cabinet secretary roles, as I understand it; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: The first role was Cabinet Secretary for Justice, which you held from 26 June 2018 to 19 May 2021?
Mr Humza Yousaf: That is correct.
Lead 2A: And the second, following the Scottish Parliamentary election in May 2021, you took over the Health and Social Care portfolio, you took that over from Ms Jeane Freeman, who had held the role during the earlier stages of the pandemic. Is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: And you held that portfolio until you became First Minister on 28 March 2023?
Mr Humza Yousaf: Absolutely correct.
Lead 2A: Could I just clarify that when Ms Freeman held the role, prior to the election, I understand the role was entitled Cabinet Secretary for Health and Sport, but when you held it, Cabinet Secretary for Health and Social Care; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: Is there any significance in the change of name with regard to the portfolios that you covered in your ministerial Cabinet secretary role?
Mr Humza Yousaf: No, I don’t think there would have been much of a change, although having taken sport out of the title and replaced it with social care, I did have a minister that took on the title of sport in her title, but ultimately, as the Cabinet secretary, I would have been responsible for the entirety of the portfolio.
Lead 2A: So you and she were both responsible for health, including public health?
Mr Humza Yousaf: That’s correct.
Lead 2A: And you and she were both responsible for social care?
Mr Humza Yousaf: That’s correct.
Lead 2A: Thank you.
I’d like to ask you some questions about some of the decision-making structures which existed within the Scottish Government during the course of the pandemic. Some of these are things we’ve heard about, but we think you might have some insights into how they operated.
We’ve heard some talk, and you mention in your statement, of a group or decision-making body called “gold” or “gold command”. Are you aware of what that group did?
Mr Humza Yousaf: I am.
Lead 2A: I understand that you attended that group, not always but sometimes?
Mr Humza Yousaf: Correct.
Lead 2A: Am I correct in understanding that this was a selected group of Cabinet ministers which would tend to include – it would always include Ms Sturgeon and sometimes include others, including Mr Swinney, yourself, Ms Forbes at various different times?
Mr Humza Yousaf: Absolutely correct.
Lead 2A: Thank you. Could I have a look, please, at paragraph 35 of your statement where you provide us a little bit more detail about this. You say at paragraph 35 that:
“In relation to how decision-making could have been improved during the pandemic, I believe there were times when a decision made by the former First Minister or discussed within Gold Command was not cascaded to the rest of Cabinet or all Ministers due to the fast nature of decision-making during the pandemic. We did our best to explain the rationale of decision making but the feedback from some groups, in particular the hospitality industry, was that the rules were changing too often, with decisions made before guidance was available. On reflection there may have been instances where we could have worked with industry on guidance before making a final decision on restrictions. I believe this could have been improved. In relation to advisory structures, my experience is that the advice was always ready and available when needed.”
What do you mean when you suggest that decisions were made by the former First Minister which were not cascaded to the rest of Cabinet?
Mr Humza Yousaf: With my Lady’s permission, before I answer the substance of that question, I just wonder if I can begin, before I respond to the first substantial question, by acknowledging the trauma and the grief that so many families and individuals faced and continue to face during the course of the pandemic, particularly those who have been bereaved by Covid. I want to offer my condolences once again to every single person who has been bereaved by Covid. However, let me also acknowledge that it is not sympathies that they require from witnesses but straight answers to straight questions, which of course I endeavour to give during the course of the next few hours.
In relation to the substance of the question that you have asked, Mr Dawson, for me, given the fast paced nature of what we were dealing with, therefore the need for urgent decisions to be made, decisions were sometimes delegated to the former First Minister. Cabinet would agree to that and the former First Minister was then entrusted to make those discussions.
And there were – there was the rare occasions where sometimes a decision was made, again responding to a particular development, and it was therefore not cascaded to the rest of Cabinet until that decision was announced, and that happened on the rare occasion, but we were often – I know special advisers, I know government officials worked hard to ensure that Cabinet was informed of decisions when they were made as opposed to once they were announced.
Lead 2A: So I think you’ve identified there situations in which decisions were made by the First Minister, the former First Minister, based on a delegated authority from Cabinet. That’s one type of decision-making process; is that right?
Mr Humza Yousaf: That’s absolutely correct.
Lead 2A: And there were other times when I think you characterised them as being – because of the pressures of the pandemic, decisions were taken by the First Minister where there had not been that delegation but that that process was necessary because a decision needed to be made immediately; is that right?
Mr Humza Yousaf: That would be correct.
Lead 2A: So therefore it is the case, I think, that you’re saying that some decisions were made in those circumstances which did not have the approval of the Cabinet?
Mr Humza Yousaf: So, again, there would have been some decisions that may have been made in that way. For the most part Cabinet would agree decisions that had to be made. There may well be times when the exact detail of a decision, so for example if we were to – if Cabinet agreed to impose restrictions around household numbers mixing indoors, there may be not be a final decision on the number of households or the number of people from a certain number of households, and therefore we would seek to delegate that decision to the First Minister, to the Deputy First Minister, Cabinet Secretary for Health to make. And that may well be because the decision was going to be announced in a couple or a few days’ time and of course the situation could develop in terms of the epidemiology of the virus and factors such as the R number, so we would – there would be times when we would entrust the former First Minister to make that decision, on delegated authority.
It would be unusual, rare, very rare, I think, for the former First Minister to make a decision without either that delegated authority or without informing Cabinet. The decision was made before it was announced.
Lead 2A: Were decisions made in Cabinet or were they made by the First Minister and/or within this gold command structure?
Mr Humza Yousaf: A variety of all of those. Decisions were made at Cabinet, and of course the Inquiry has a number of documents in relation to Cabinet minutes and meetings. So discussions were engaging in Cabinet. There was sometimes differences of opinion, as you can well imagine, but decisions were made often at Cabinet. Gold command, though, was there for a reason because the situation could of course change between one week’s Cabinet meeting and the next, given the fast paced nature of the virus that we were dealing with.
So gold command was an important structure and ultimately also the First Minister, we knew, was doing daily briefings, virtually every single day, and therefore there was also that delegated authority, should she have to make a decision because of a development in the virus that particular day.
So I think it is, to answer your question, a mixture of all of those.
Lead 2A: We’ve heard evidence about the constitutional structure within which the Scottish Government purports to operate, from a political expert, Professor Paul Cairney. He confirmed that the basic structure is that decisions are to be made in Cabinet, as is the case within the UK Government, and that there are good constitutional reasons for that.
Do you accept that as a matter of principle, as the way in which decisions are meant to be made within our constitutional system?
Mr Humza Yousaf: Yes, I agree that, absolutely, that Cabinet is an important structure for decision-making.
Lead 2A: Because within Cabinet there are a number of voices that are able to approach important questions from a number of perspectives, and if there is real discussion and debate within that forum, those perspectives can all be given the respect that they deserve, such that better decisions can be made; would that be a fair summary of why the system is as it is?
Mr Humza Yousaf: That is a fair summary, and as somebody who has had a number of Cabinet secretary positions in the past and is now in the very privileged position of being First Minister, there is very good reason for decisions being made at Cabinet, and that is how decisions are made on most occasions, particularly during normal times. We were not of course in normal times in the course of the pandemic, and therefore there will often be more delegated decisions made during the pandemic than you would make in normal times.
But I, as First Minister, also will ask Cabinet for delegated authority of decision-making, most recently done in the course of the budget last year, where I asked the Cabinet to delegate final decision-making to myself and the finance secretary, and Cabinet approved that.
Lead 2A: But, to be clear, you’ve told us that there were occasions on which the First Minister either with or without the benefit of discussions within gold command took decisions without the delegated authority of the Cabinet?
Mr Humza Yousaf: Again, I think those times would be very rare, very rare occasions. Often the former First Minister would seek Cabinet’s delegated authority, but I think there was an understanding in exceptional cases, where the epidemiology of the virus had changed, if there had been a sudden spike in cases in 24 hours and therefore a decision had to be made there and then, that there was an understanding that, given this was not normal times, that such decisions could be made by the First Minister.
Lead 2A: You suggested, I think, in your evidence that there was a certain regularity with which Cabinet met. Was it not possible to convene Cabinet meetings at short notice in those urgent situations?
Mr Humza Yousaf: Of course it could, gold command, in essence, was a tighter cast list of Cabinet secretaries that were necessary to make a particular decision. Gold command and the attendance of gold command, of course, would change depending on the decision that was required to be made. I attended some gold command meetings in my various Cabinet secretary roles and in other I did not, because it just depended on the decision that was required to be made.
Lead 2A: Cabinet minutes are a record of discussions taken at Cabinet meetings and they are published, are they not?
Mr Humza Yousaf: That is correct.
Lead 2A: Discussions within gold command were not generally minuted and published; is that correct?
Mr Humza Yousaf: My understanding was that gold command meetings should have been minuted, but if that was not the case, then that would not have been the usual protocol for government meetings, they should be minuted, and of course be available should there be the appropriate request.
Lead 2A: If an interested citizen of Scotland wished to know what discussions had taken place within gold command that had led to significant decisions which impacted upon people’s most fundamental freedoms, such a citizen would be generally entitled to be able to see how those decisions had been made; would you agree?
Mr Humza Yousaf: Yes.
Lead 2A: If it transpires to be the case that gold command meetings were not minuted, it would be difficult for such a citizen to access that information, wouldn’t it?
Mr Humza Yousaf: It would be difficult, but of course there could also be requests for information of discussions at Cabinet, or indeed, of course, any other documentation that might be necessary and might have been relevant to any decision that was made.
Lead 2A: Was the Scottish Cabinet during the pandemic a decision-ratifying body rather than the main decision-making body?
Mr Humza Yousaf: No, I wouldn’t agree with that characterisation. For my attendance at Cabinet meetings there was good engaging conversation, as I said at times disagreement on the approach that was to be taken, but our Cabinet meetings were a good discursive fora by which to have those discussions. We weren’t there simply to ratify. As I say, I can think of instances where challenge was brought forward and what was in the original submission or advice from officials was therefore amended accordingly depending on the decision that was then taken.
Lead 2A: Was it the former First Minister’s practice to take important decisions as a result of discussions with a close group of ministerial colleagues, whether in gold command or not, not calling upon Cabinet or the wider advisory structures available to the Scottish Government?
Mr Humza Yousaf: Again, it will be for the former First Minister of course to answer exactly how she would make decisions, but in my experience as a Cabinet secretary who served under her, in a variety of roles, she found great value in the discursive nature of Cabinet, of gold command. But also, equally, if Cabinet as a whole did not have to be brought together, given the very precise nature of a decision that had to be made, then gold command was the – I think the appropriate fora by which to make that decision.
Lead 2A: Could I have you – you’ve provided to the Inquiry a number of WhatsApp exchanges in which you were involved from the period of the pandemic, as requested by the Inquiry; is that not correct?
Mr Humza Yousaf: That is correct.
Lead 2A: Thank you.
Could we have a look, please, at INQ000334792.
This is a record of some WhatsApp exchanges between yourself and Professor Jason Leitch, who was the National Clinical Director; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: In fact, I think this comes from the very day on which you were appointed as Cabinet Secretary for Health and Social Care; is that right?
Mr Humza Yousaf: I think that is correct.
Lead 2A: Yes. There’s some discussion here which we’ll get on to in a bit more detail about you arriving at your desk, approaching the new job and immediately getting stuck into some of the difficult decisions that you had to engage in, in particular the context is that you are discussing figures which have arisen relating to concerns about the rise in cases in the Glasgow area and in particular East Renfrewshire, which seemed, on your analysis, to be indicating a cause for concern as the cases were going up. Is that a fair summary of the context?
Mr Humza Yousaf: That is fair.
Lead 2A: You are seeking Professor Leitch’s input and counsel on that decision; is that right?
Mr Humza Yousaf: That is correct, yeah.
Lead 2A: And you refer at 11.52, wrapping up, I think, your discussion with Professor Leitch on that subject, that you’ll be “on the deep dive”, and then Professor Leitch replies:
“Good. There was some FM ‘keep it small’ shenanigans as always. She actually wants none of us.”
This is Professor Leitch giving you guidance and advice on your first day in the new job; is that right?
Mr Humza Yousaf: Yes.
Lead 2A: And he refers to the First Minister’s “‘keep it small’ shenanigans” and that “She actually wants none of us”. Was this an indication in fact that the First Minister really took decisions in connection with the pandemic herself or at least would have preferred it that way?
Mr Humza Yousaf: I think that was, as Jason said when he gave evidence to this very Inquiry, an example of him perhaps overspeaking. I don’t doubt of course that there were times when the former First Minister needed a tighter cast list and wanted a tighter cast list to make a decision on a very specific issue, but I think this was a classic example of Jason perhaps overspeaking.
Lead 2A: When you talk about the “tighter cast list”, are you talking about the gold command or something similar?
Mr Humza Yousaf: Yes, generally gold command.
Lead 2A: So in essence, as I suggested to you earlier, the practice was that the decisions would be made by the First Minister gathering around her a small number of close advisers rather than putting the matter to Cabinet or exposing herself to the wider advisory structures of the Scottish Government; is that correct?
Mr Humza Yousaf: No, I would say that, again, a number of decisions were taken at Cabinet, particularly in terms of the overall direction in which the government was going in relation to restrictions – or any decision in fact connected to the pandemic. It may well be that the finer detail of that decision was then delegated to the First Minister or indeed other Cabinet secretaries and that’s where gold command could often come in or gold command may well come in, when there was a development in the virus and a decision had to be made either that evening or indeed the next day.
Lead 2A: So to put this in this particular context, because one sees in the period of you being Cabinet Secretary for Health and Social Care a number of exchanges of this nature where you are trying to take the counsel of Professor Leitch in particular around the question of levels that different areas should be applied – should be put into, when you say the principle would be agreed by Cabinet but the finer detail delegated, in this context would that mean that the Cabinet had said there should be a levels system but the First Minister and her close group would decide which levels would be applied to which areas?
Mr Humza Yousaf: So, forgive me, I couldn’t tell you exactly the – how the final decision on this particular –
Lead 2A: I’m talking more broadly about that type of –
Mr Humza Yousaf: Yes –
Lead 2A: – decision –
Mr Humza Yousaf: – answer that question.
It would often be the case that we would come to an agreement in Cabinet about exactly what level a particular area would be in. There would be some areas where, given the thresholds that we’d look at, in terms of whether a local authority was in one level or another, that they might well be right on that threshold or close to that threshold, so there would be the decision to delegate the final decision on East Renfrewshire or Glasgow or Moray to gold command or to First Minister to make that very final decision.
Lead 2A: So in essence it was the small group and the First Minister who made the decision, which is important, which is which level the particular area something into?
Mr Humza Yousaf: Not always. As I said, on a number of occasions Cabinet would agree the exact level for the exact local authority to have to go on. There was always going to be, within 32 local authorities, some that were perhaps on the cusp of going into level 3, some on the cusp of level 2. And ultimately, before a decision was made, it was right that that final decision was delegated, be it to the First Minister, the Cabinet Secretary for Health or others, with the most up-to-date information on case numbers, the R number and test positivity.
Lead 2A: The Inquiry has heard significant evidence about the principles of transparency and accountability in documents such as the National Performance Framework. These are principles to which the Scottish Government is committed; is that correct?
Mr Humza Yousaf: Yes.
Lead 2A: We have also seen these principles reiterated throughout documents relating to the pandemic response itself. For example, the four harms framework of April 2020. Is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: And that tells us that the Scottish Government’s position, as far as its public-facing aspect was concerned, was that it wished to apply those important principles in the way that it handled the pandemic; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: And indeed there have been a number of opportunities for yourself and others on behalf of the Scottish Government to reiterate your commitment to those principles with regard to your participation in this very Inquiry; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: On 29 June you said to the – in response to a question in the Scottish Parliament:
“It is important that I abide by the rules of the UK public inquiry and the Scottish public inquiry … to ensure that there is simply no doubt whatsoever, any material that is asked for – WhatsApp messages, emails, Signal messages, Telegram messages or whatever – will absolutely be handed over to the Covid inquiries and handed over to them in full.”
Has that always been your position?
Mr Humza Yousaf: That has been my position, yes.
Lead 2A: This remains your position?
Mr Humza Yousaf: Yes, that any messages we have should be handed over in full.
Lead 2A: It is important, is it not, not just for the very important purpose of engaging with subsequent public inquiries such as this and the Scottish Inquiry, but also, during the course of a public emergency which does not derive from a single event but is continuous, that material relating to the way in which decisions were taken must be retained so that proper lessons could be learned and a better response to the pandemic developed; is that correct?
Mr Humza Yousaf: That is correct. And perhaps on this issue of informal messaging, including of course WhatsApp messages, let me reiterate what I have said in the Chamber just a couple of hours ago. Let me unreservedly apologise to this Inquiry but also to those who are mourning the loss of a loved one, that was bereaved by Covid, for the government’s frankly poor handling of the various Rule 9 requests in relation to informal messaging, messages. There is no excuse for it, we should have done better, and it’s why I reiterate that public apology today.
Ministers are – and there is awareness amongst minsters, amongst Cabinet secretaries, regardless of the medium of communication, that any key decision that is in relation to government business should be recorded in the corporate record, and the salient points recorded on the corporate record, and that’s usually done via the private office or via government officials. But I’m afraid for a long time the corporate mindset of the government – the organisational mindset of the government was, because the corporate record had those key decisions and salient points, that was the only thing really that was required to hand over to the Inquiry, when the Inquiry made it clear, of course, that you were seeking more than that.
And there is a gap – regardless of the Records Management Plan, the mobile messaging policy, there is clearly a gap that exists in relation to how material in informal communications should be retained in relation to a statutory public inquiry, and that’s why I’ve instructed an externally-led review to look at this issue and other issues such as what ministers and Cabinet secretaries should do should they, for example, change device in the midst, particularly, of an emergency such as a pandemic or anything that is analogous to that.
Lead 2A: Thank you.
In answering questions about this area, one of the senior civil servants, Ms Fraser, from the Corporate directorate general, accepted that it was important in the interests of transparency and accountability to the Scottish public that information about how decisions were reached should be retained. Do you agree with her?
Mr Humza Yousaf: I do.
Lead 2A: You mentioned in your response there the requirement, as I understood you, to retain information within the system about key decisions that were made. Would you accept that both the policy in existence at the time and indeed the principles of transparency and accountability require there to be careful record-keeping of how decisions are made, meaning that discussions leading to decisions also require to be recorded?
Mr Humza Yousaf: Yes, and again our record management policy will make clear that it’s not just the decision that has to be recorded but – I think the wording is used, “the salient points of any decisions that are made should also be recorded for the corporate record”.
Lead 2A: There’s a difference, though, perhaps, it might be quite subtle, but the salient points of a decision is one thing, but the salient government business involved in the process leading to the decision is another. Do you accept that both categories require to be retained in order to fulfil the ultimate objective of transparency and accountability?
Mr Humza Yousaf: Yes, and I accept the point that you’re making. I would say, of course, our Records Management Policy is important for a couple of reasons: one, of course, for all of the reasons that you have just articulated in relation to transparency, good governance, but also for record management. We cannot possibly, as an organisation, keep every single piece of documentation that is produced by the organisation, it would be very, very challenging and difficult to do so, so there is a need for that Records Management Policy, and ultimately there will be a point where it is for the interpretation – the interpretation of the receiver of that information to decide whether or not that should be recorded in the corporate record or not.
Lead 2A: But those principles of transparency and accountability should aid in that interpretation?
Mr Humza Yousaf: They should, of course.
Lead 2A: Because if there’s material relating to discussions in the business of government, it would be necessary for an interested member of the Scottish public to be able to access that material in order to know how decisions were taken and ultimately to know whether decisions were taken in a way with which they were satisfied?
Mr Humza Yousaf: Yes, I think that’s fair.
Lead 2A: As far as your production of WhatsApps and other informal messages to the Inquiry is concerned, I think it is apparent, is it not, and I think you have accepted this, that you are a heavy user of WhatsApp as a means of communication?
Mr Humza Yousaf: I use it on a daily basis.
Lead 2A: Is it the case that you used your own personal phones, plural, for WhatsApp messages during the course of the pandemic rather than a government-issued phone?
Mr Humza Yousaf: Yes, that’s correct.
Lead 2A: And I think it has transpired from the material you have provided that you in fact had multiple phones over the period from January 2020 to April 2022?
Mr Humza Yousaf: Both personal and government devices, yes.
Lead 2A: Yes.
Could I ask you, please, to look at INQ000319509.
This is a table that we went to with some previous witnesses, which was very helpfully produced to us by the team with whom we are dealing within Scottish Government, in connection with our enquiries about the usage of materials – of informal messaging systems, and amongst other things in this table what we see is the Scottish Government’s response as to what was used during the course of the pandemic, and it says there, as regards your WhatsApp, other informal communication systems, that you:
“Used WhatsApps with Nicola Sturgeon and John Swinney to discuss matters. Any decisions made were recorded through the appropriate channels as per Scot Gov guidance. No other informal communications platforms were used.
“Communicated with Kevin Stewart and Maree Todd through WhatsApp.”
Just to pause there, they were ministers who were working with you in the time as health secretary; is that right?
Mr Humza Yousaf: That’s absolutely right, yeah –
Lead 2A: Yeah –
Mr Humza Yousaf: – ministers in my portfolio.
Lead 2A: Thank you very much.
“WhatsApp used to discuss information and advice relating to Covid-19, more frequently at the beginning of the pandemic due to restrictions on in person meetings. Deleted all messages after a month for cyber security purposes as per their understanding of the Scottish Government Mobile Messaging Apps Usage and Policy. Does not recall being part of any decision making via WhatsApp.
“Part of ‘Health 4 Nations’ WhatsApp administered by Matt Hancock, and this was disbanded after Matt Hancock left office. Used for information sharing as opposed to decision making, such as number of Cases, R number etc. Messages not retained.”
This document is dated 13 October 2023. This is what the Scottish Government represented to us as being your position as at that time, to the effect that you had retained none of the messages, although that you had used WhatsApp to discuss information and advice relating to Covid-19. Is that an accurate representation of your position as at that time?
Mr Humza Yousaf: Of course that position developed –
Lead 2A: We’ll get on to that, I just –
Mr Humza Yousaf: Sure –
Lead 2A: – this particular –
Mr Humza Yousaf: Sure, mm-hm.
Lead 2A: Is that right, then, this is an accurate representation of your position?
Mr Humza Yousaf: Yes.
Lead 2A: When you say that – in the opening paragraph – “Any decisions made were recorded through the appropriate channels as per Scot Gov guidance”, does that indicate that your understanding of the Scottish Government guidance or policy was that only decisions made required to be recorded through the appropriate channels?
Mr Humza Yousaf: No, decisions and salient points in relation to decision-making should have been recorded in the corporate record.
Lead 2A: Thank you, so the reference to decision there is really a shorthand for that wider group that we discussed earlier; is that correct?
Mr Humza Yousaf: Yes.
Lead 2A: When you say “recorded through the appropriate channels” is that another of way of saying – we’ve heard this expression before, from Ms Fraser and others – that that material has been recorded on the corporate record?
Mr Humza Yousaf: Yes.
Lead 2A: And how, as a matter of practice, would you have gone about transferring the salient points of discussions relating to important decisions onto the corporate record as a matter of practicality?
Mr Humza Yousaf: Yes – and forgive me, I said that this was a statement that was correct as per 13 October, there’s probably some areas that were obviously updated thereafter which would abrogate some of what is in here, but I assume –
Lead 2A: I am – to be absolutely fair, what I’m trying to do is just understand your position at that time. I will take you to the developments thereafter, I won’t –
Mr Humza Yousaf: Of course.
In terms of how that was recorded, if there was a discussion of salient points or a decision that was made over any informal communication, then it would often be for one of the Cabinet secretaries or ministers to inform their private office or another government official, who would then put it into the corporate record. No decision could be actioned, of course, unless it was in some way in the system, and that was usually done through private office.
Lead 2A: And your position is you did that in connection with all of the communications that you had but then you deleted the actual original messages; is that right?
Mr Humza Yousaf: Some messages would have been deleted, still recoverable but not – but may well have been deleted.
I have to confess in the midst of a global pandemic and the issues that we were engulfed in at that point, deleting messages routinely was not always the top priority.
Lead 2A: But your understanding of the policy was that what you needed to do was to record the information on the corporate record through that mechanism, your private office, and that there was then an obligation to delete the messages for cybersecurity reasons a month after that, and in between the material would be communicated through your private office and put on the corporate record by whoever it was in your private office?
Mr Humza Yousaf: That was the guidance in the mobile messaging policy.
Lead 2A: So at that stage you hadn’t produced any messages to us because they had by that time, 13 October, been deleted in accordance with the practice that you have laid out?
Mr Humza Yousaf: They were no longer available. Or so I thought of course.
Lead 2A: Yes, indeed.
So after that, there were discussions – there was a development in your position, as I understand it, and you provided a supplementary statement to the Inquiry explaining what the process had been, because although your position as at 13 October was that you didn’t have any messages because they weren’t available to you, you found a phone on – where the messages were ascertainable; is that right?
Mr Humza Yousaf: I wouldn’t say I found, I retained a handset, my previous handset, that I used up until about the middle of March –
Lead 2A: Sorry, of?
Mr Humza Yousaf: Of last year.
Lead 2A: So you were aware that you still had in your possession that handset before 13 October; is that right?
Mr Humza Yousaf: Yeah, that’s correct.
Lead 2A: Had you not checked that when you said that all the messages had been deleted?
Mr Humza Yousaf: I had. And because I had migrated my WhatsApp account on to the new device, so same number, migrated it on to the new device, when I went back to the old handset, when I went back to WhatsApp, there was just – there was no messages at all, it was blank. Now, of course I’m happy to talk to the fact that messages were recoverable, thankfully, by – not any amazing technical wizardry but actually by logging out of the WhatsApp account in my current handset and logging back in on the old handset. Because those messages were still on the phone storage, they would be able – they were fairly easily recoverable.
Lead 2A: So you were under the impression that the messages had been deleted previously in accordance with an existing government policy, but in fact it transpired that they had not been deleted and that they were in fact recoverable relatively easily?
Mr Humza Yousaf: Yes.
Lead 2A: The position then was that you were able to provide us with a large number of messages, including, for example, with a number of other people, but including extensive exchanges between yourself and Professor Leitch, of the nature that we’ve looked at already, so that there was a large number of messages on that handset, although in some way embedded within it in a way that you couldn’t originally access; is that correct?
Mr Humza Yousaf: In a way that was – I didn’t realise I could access when I changed device, yes, that’s correct.
Lead 2A: Thank you.
Your position is, I think, that those messages were – or the salient business points relating to discussions or decisions, were uploaded to the corporate record at or around the time when they were exchanged before the 30-day deadline expired –
Mr Humza Yousaf: Yes.
Lead 2A: – is that right?
So we have recovered, as you have said, during the course of your evidence and, you have said, in other fora, a significant amount of documentation which the Scottish Government has provided to us which relates to decision-making discussions relating to the way that the Covid-19 pandemic was managed in Scotland; that’s correct, isn’t it?
Mr Humza Yousaf: Yes.
Lead 2A: Given the fortuitous revelation of the messages which were unavailable to you but became available when you followed the process that you’ve set out, it would now be possible, would it not, for us to conduct a comparison between effectively what the government has given us, the corporate record relating to these matters, and your messages, in order to ascertain whether in fact you had recorded the salient points on the corporate record?
Mr Humza Yousaf: Yes, although I would make the point that salient points as – is open to interpretation. Key decisions of course and salient points relating to that decision should be noted in the corporate record, but you’re absolutely right, you could cross-reference.
Lead 2A: And we’ll find there, will we, that the salient points of the business you conducted over WhatsApp will be included within the corporate record?
Mr Humza Yousaf: Key decisions and salient points related to that decision should, of course, be recorded, and it was my practice to then inform my private office of those key decisions of any salient points related to that. And if I did not do that then of course those decisions would not be taken forward.
Lead 2A: Just to be clear, again, slightly terminology but it might be important, again you’re talking about decisions and salient points of decisions, but what I think you accept you were required to put on the corporate record was also discussions relating to decisions, so will that be included on the corporate record?
Mr Humza Yousaf: I think salient points would be recorded on the records, salient points, and that includes decision-making but any other salient points in relation to that decision.
Lead 2A: Will that include the types of discussions or the tenor of the types of discussions that you have been having with Professor Leitch in the exhaustive messages that you have now sent to this Inquiry?
Mr Humza Yousaf: So not every sentence, full stop, apostrophe, would be recorded, nor would it be required to be recorded, but if a decision was made and – any of the salient points related to that decision being made, they should be of course recorded on the corporate record.
Lead 2A: Because, of course, you’re now telling me that they should be recorded but you represented previously that they were on the corporate record; is that right?
Mr Humza Yousaf: I would always endeavour to put them on the corporate record, yes.
Lead 2A: Yes.
Mr Humza Yousaf: If there was any times that that was not done then that would have been a mistake made by a Cabinet secretary, by a minister, if they did not do that, but of course the guidance is that those decisions made should be recorded and the salient points in relation to that decision also.
Lead 2A: And in your case they were so we should find them on that corporate record?
Mr Humza Yousaf: Certainly that was always my intention to do that.
Lead 2A: But just to be clear, I’m not asking you about your intention, my understanding is that you have told us in your evidence and also previously that you did make sure that the stuff, the relevant material was on the corporate record?
Mr Humza Yousaf: Yes, we would always, when decisions were made, record on the corporate record, as per the Records Management Policy.
Lead 2A: In any event, First Minister, given the fortuitous discovery of these many messages – which we’ve read with great interest, and we’re obliged to you for producing them subsequently – we can carry out a comparison between these two bodies to ascertain whether that’s correct.
Could I ask you, you also provided some WhatsApp messages, not – although Professor Leitch is a frequent correspondent, there are others with whom you corresponded via that mechanism. One of them was the former First Minister, and you helpfully provided us with some messages. Helpfully because the former First Minister’s position is that she does not have access to any of those messages conducted – the WhatsApp messages – involving conversations with you or indeed anyone else.
Did you discuss the production of your WhatsApp messages to this Inquiry with the First Minister, the former First Minister?
Mr Humza Yousaf: No.
Lead 2A: We noted in your WhatsApp messages with Professor Leitch that there were frequently voice notes received from him. Was that a frequent practice of his, do you recall?
Mr Humza Yousaf: It was certainly on occasion and I would also occasionally use voice notes as well.
Lead 2A: Were the contents of those voice notes, in so far as relating to significant decisions made in the course of the pandemic or discussions around them, transcribed or copied into the corporate record?
Mr Humza Yousaf: Again, if there were salient points from those voice notes, then they would – and decisions that were made in those voice notes, then of course we would always seek to record them on the public record, on the corporate record.
Lead 2A: You would say you would seek to do so but can you tell me whether that did happen or not?
Mr Humza Yousaf: Again, when so many decisions were made in the course of the pandemic, it would always be the practice that we would seek to do that, government ministers, Cabinet secretaries would seek to do that. If there was occasions when that did not happen – that, I would hope, would be the very rare occasion but it should not happen – it should be the case that every single minister, Cabinet secretary, myself included, would ensure that those decisions and salient points related to those decisions were indeed on the corporate record.
Lead 2A: As you used your personal phones, because there were multiple phones, for conducting these exchanges, and you’ve explained to us the process by which the corporate record would be updated by you passing material to your private office, who would then include it in the corporate record, was it your habit then to give your phone, including these messages and voice notes, et cetera, to your private office to undertake that process?
Mr Humza Yousaf: No, because – that would not be the usual practice, because, again, it wouldn’t be the case that we would expect every word verbatim, full stop, apostrophe, to be recorded, it’s the salient points. So if I had a voice note from the former First Minister about a decision that we had made and it was for me to action, then I would make sure that I would inform my private office about the decision that was made after discussion with the former First Minister, and if there are salient points to record as well as that decision, then I would pass them on usually through an email in to my private office or indeed through a telephone call or a face-to-face exchange.
Lead 2A: So the process by which the information was passed was by email, so those emails should also exist showing how the –
Mr Humza Yousaf: Emails or face-to-face or telephone calls. Granted, less face-to-face during the early parts of the pandemic, given the restrictions, but there could be a number of ways of communicating the decision, or indeed the salient points, it wouldn’t just be by email. Certainly it was not done by handing a phone over or copying and pasting a whole WhatsApp exchange. It would be, again, the decision that was made and the salient points thereafter.
Lead 2A: Okay. But on the occasions when you did pass that information by email, those emails would still exist and we would be able to look at those emails to understand what you had passed on?
Mr Humza Yousaf: Yes, and I hope they would be passed on to the Inquiry already if requested.
Lead 2A: Sometimes the exchanges – a good example actually is the exchange you had on your very first day, where you’re trying to get to grips with some of the complex information, you were discussing things, thoughts with Professor Leitch. He is giving you some advice. There are numerous such exchanges. They can be quite complex and the thinking expressed within them can be quite complex.
Are you certain that where you conveyed the information to your private office verbally, as you said sometimes happened, although perhaps not in the early stages of the pandemic, it was conveyed such that all of the salient points relating to the discussion made their way onto the corporate record?
Mr Humza Yousaf: Again, where there was decisions that were made, absolutely certain of that, and if there was any misunderstanding from my private office they would usually seek clarification. If Jason and I were having a conversation because I was asking his advice on case numbers, trajectory or a particular area of clinical expertise that he had, it’s not necessary that that would be fed back into the private office or the corporate record. If there was a decision that was made or a salient point relating to that decision, then that was recorded on the corporate record.
Lead 2A: These processes are an important part of the Scottish Government and its key ministers upholding the principles of accountability and transparency upon which their bond of trust with the Scottish people is based; is that correct?
Mr Humza Yousaf: Yes.
Lead 2A: If it were to transpire that the material which we can now see in the messages has not been put onto the corporate record and therefore would not be available for a citizen to see on the corporate record, would that bond of trust have been broken?
Mr Humza Yousaf: No, I would disagree with that characterisation. I think it’s important that we record the decisions that are made and any salient points related to that decision. We cannot, I don’t think, reasonably be expected as a government to record every single sentence, as I say, every full stop or apostrophe, nor is that required of us. I think what’s really important in terms of that bond of trust, and this was exceptionally important for issues around public compliance with restrictions, was explaining the rationale for why we made certain decisions. And that was done regularly. It was the former First Minister’s practice to, almost daily, do a briefing with the media, to explain – they were well watched, as the Inquiry will know, and therefore exceptionally important that we demonstrate the rationale for the decisions that were made. That isn’t always done through the corporate record, maybe it will be done through ministerial statement, through daily briefing, through questioning from journalists or parliamentarians.
Lead 2A: Thank you.
I’d like to ask you some questions about the Cabinet Secretary role you held in the early pandemic, that was the Cabinet Secretary for Justice. I think you were able to be – you were present at a number of the early meetings which took place in February of 2020 when information about the emerging threat had started to come through and the Scottish Government was trying to put together some element of co-ordination of its response; is that right?
Mr Humza Yousaf: That’s correct.
Lead 2A: For example, you attended a meeting of a body called SGoRR, the Resilience Room, about which we’ve heard other evidence, on 17 February. Is that right?
Mr Humza Yousaf: That is correct.
Lead 2A: One of the responsibilities you had was for policing; is that right?
Mr Humza Yousaf: That is correct.
Lead 2A: Could I have paragraph 143, please, of the statement up, where you helpfully give us some information about this situation. You say:
“In February 2020, my awareness of the number of people likely to be infected with Covid-19 in Scotland and in the UK (including details of any reasonable worst-case scenario (RWCS)) was dependent on the advice that we received from the CMO in terms of the forecast numbers of those affected. The SGoRR paper dated 17 February 2020 noted the RWCS figures and this was discussed at Cabinet the day after SGoRR met on 18 February 2020. These figures were clearly alarming and only underlined the rationale for the Government’s focus being dominated by its response to the pandemic.”
At around this time, can you tell us what steps you took to try to prepare the justice system for this clearly alarming situation, in particular because within the document that was prepared for that very meeting criminal justice is an entire section that is highlighted as something likely to be impacted by the threat?
Mr Humza Yousaf: Yes, there was immediate discussions of course with my officials, and they focused – and with stakeholders, some external and some as part of government bodies and agencies. They were predominantly focused on three areas: on the court system, what might be the impact, although that came slightly later on than this; clearly in relation to prisons, and that’s where some of the early focus was if this virus spread throughout a prison population, which I’m afraid to say was and continues to be overcrowded; and with police.
And again I think conversations with the police came slightly later than this, but those were the areas of focus for me immediately, once we received this reasonable worst-case scenario modelling paper.
Lead 2A: Well, that’s a very helpful summary, because I was going to ask you about the prison situation as well, because that was another thing within your portfolio; is that right?
Mr Humza Yousaf: That’s correct.
Lead 2A: You’ve touched on the very issue which I wanted to address with you, which was prisons, for example, weren’t discussed at Cabinet until 17 March. Is it the case that as far as policing and prisons were concerned, it was predictable that this alarming threat would require action both in terms of policing for enforcement but also in terms of the real risk that it posed to the prison population, given their particular circumstances, by this virus?
Mr Humza Yousaf: I think it was immediately clear once we had detail of the significant threat of Covid how damaging it could be to a prison population and there was European examples of where prisons had seen the virus rip through it, through the prison estate, and therefore that was one of the earliest conversations I had with my prison officials and, where necessary, with the Scottish Prison Service.
Lead 2A: Given that there was no discussion of prisons until 17 March does it suggest that perhaps Scotland was a little slow off the mark to deal with the policing and prison situation?
Mr Humza Yousaf: No, no, just because it wasn’t discussed at Cabinet, that didn’t stop or inhibit Cabinet secretaries and myself, as Cabinet Secretary for Justice, from having those conversations earlier, be it with officials or indeed with the bodies themselves, be it Police Scotland or the Scottish Prison Service.
Lead 2A: But what systems were – discussions, obviously, but what systems were put in place, first of all, to deal with what I would suggest would be the inevitable requirement for the police to be involved in some level of enforcement of rules, but also the very real threat that would be posed to the prison population? The prison population not, in some ways, being that different from the type of situation one saw with the Diamond Princess; although it wouldn’t necessarily have an elderly population, it would involve people in confined circumstances where the virus may spread rampantly.
Mr Humza Yousaf: I think this is exactly the point, there was no need for Cabinet to sign off the Scottish Prison Service looking to, for example, create extra capacity so they can try to introduce some sort of measure of be it social distancing or, for example, to see if they could remove people from double cells into single cells if possible, and those decisions wouldn’t require a Cabinet decision to have to be made.
Similarly discussions with police. When it came to issues of potential enforcement when it comes to legislation being introduced to the Scottish Parliament and being passed by Scottish Parliament, it wouldn’t necessarily require a Cabinet decision in relation to the operational independence of the police, Police Scotland had operational independence to make decisions based on any legislation that was passed and the subsequent enforcement action.
Lead 2A: So these matters were, you explain, not necessarily matters that Cabinet would have to decide but they were within your remit to decide; is that right?
Mr Humza Yousaf: They were my remit to have an overview. I should stress the point about operational independence for the police. I mean, it would absolutely a matter for the Chief Constable to determine how they enforced and the four Es approach that they took was an example of a decision that was made very much by the Chief Constable.
Lead 2A: What concrete plans were put in place with regard to the police and prisons at this early stage in March?
Mr Humza Yousaf: The discussions were held around – with clinical experts to understand what needed to be done to try to slow the transmission of the virus in a setting such as a crowded prison estate. So at the time the Scottish Prison Service tried to use whatever capacity it had, whatever additional space it had, to try to create, for example, social distancing measures. We were, of course, in the early, early days of trying to see what testing was available, at that stage, of course, in its development phase.
And then regular discussions with Police Scotland – and I instructed regular discussions with Police Scotland in order to determine what actions we could take collectively in relation to enforcement when – when that became apparent.
Lead 2A: Another area which I think from your statement you had responsibility for was travel restrictions in that post; is that right?
Mr Humza Yousaf: For a period, yes.
Lead 2A: Yes – for a period? Over what period was that?
Mr Humza Yousaf: Yes, I think it should be, I hope, in my statement but there was a point where later, after a number of months, I think the transport minister ended up taking responsibility for measures – forgive me if I don’t have the exact date before me –
Lead 2A: Yes, I think that may be in the statement, First Minister, but what I was interested in was the way in – over the period for which you were – when you were responsible for this, the way in which that worked. In particular you mention in your statement that there was a requirement for you to engage in discussions at a four nations level to deal with travel restrictions. It’s an area in which we have an interest. You explain in your statement that the engagement was primarily at the UK Government level for the transport minister but that you did have limited engagement with Mr Jack, who was the Secretary of State for Scotland.
Was the – what role did Mr Jack play? Because in our assessment one might have expected in an area like this, where there is an obvious need for UK four nations cross-border co-operation to the extent that it could be achieved, for the Secretary of State for Scotland to play some sort of role more than what you describe as limited engagement?
Mr Humza Yousaf: Yes and I can’t obviously speak for the Secretary of State for Scotland in terms of what engagement he had with his UK counterparts. I can only speak for the fact that when we’re on these four nation calls, his engagement was very limited and there would often be meetings where he wouldn’t say anything at all, and perhaps he was there to observe what was said on the meetings as opposed to necessarily contribute, but of course I couldn’t speak to the discussions he was involved in privately with colleagues and UK counterparts behind the scenes.
Lead 2A: Constitutionally would you have expected the Secretary of State for Scotland to have played a more prominent role in these discussions, given the importance, I think you’ll accept, of the need to try to come so some sort of consensus over travel restrictions?
Mr Humza Yousaf: I was curious at times why he was on the calls if there was no contribution that was being made, call after call, if that was the case. But no, ultimately there was a devolved responsibility for us in the Scottish Government and there was devolved responsibility to other governments in terms of their jurisdictions, England, Wales and Northern Ireland. With travel it was always going to be more difficult for those other nations outside of England because whatever decisions were made by the UK Government for England were largely going to impact the decisions that we made in Scotland, particularly around international travel –
Lead 2A: This is what I wanted to focus on, because our understanding from the evidence given by Mr Kenneth Thomson, who you will know was a senior civil servant, was that Scotland always – the Scottish Government always had responsibility for external borders, the external border of Scotland, because of the fact that public health was a devolved matter, and that was effectively a public health decision, even although the question of borders, as far as immigration and nationality is concerned, is a reserved matter.
So as far as we understand the position, from the very beginning Scotland effectively controlled its own borders, but – is that correct, is that your understanding?
Mr Humza Yousaf: It’s a very complex matter, and complex issue, just as you have articulated it. Ultimately if we – when we got to the phase of decision-making when we were looking at international travel corridors, we were looking at various different lists, whether countries should be on a green list, an amber list, a red list, you’re absolutely correct, Scotland could have made a decision and there was occasions when we made decisions where we put countries on a different list to the UK Government, for example, but that was rarely done because ultimately there was implications when the UK Government made a decision to put a country – England – on a green list, ultimately if we went – put that country on an amber or red list, people may well just arrive into a port in England and come up to Scotland, therefore we would be at a disadvantage both in terms of the virus but also in terms of our airports as well.
So we could make decisions around inbound travel and what lists countries were on. Immigration of course mattered. It was still a reserved matter and remains that way.
Lead 2A: So would you say that in practice and constitutionally the question about who ultimately controlled the borders was a blurry distinction?
Mr Humza Yousaf: Yes, to an extent I think that’s right. I think it was known that we could – when it came to determining whether countries were on a particular list, we could, as a Scottish Government, make a decision, and that decision could be different to other nations in the UK, and vice versa, but I think it was also well understood that if there was divergence then ultimately the decision that was made by the UK Government for England, that was going to have an impact on Scotland, Wales and Northern Ireland, given the ports of entry.
Lead 2A: Yes, so for the reasons you just discussed, which I think was people could arrive in England and travel to Scotland, and therefore Scotland would still have the public health detriment, if you like, of that, so there was a need –
Mr Humza Yousaf: – and economic detriment –
Lead 2A: Yes, yes indeed, the detriments.
I think, therefore, that – is it correct to say that this was an area in which there was a requirement for good intra-governmental relations to try to be consistent about the policy, to try to do the best for the people of Scotland to protect them from any of these threats?
Mr Humza Yousaf: Yes, it certainly required collaboration in the – in the interest of public health.
Lead 2A: Did you find you got that collaboration?
Mr Humza Yousaf: It was frustrating at times. For me, in my engagement with the UK Government – and if you’re asking me specifically around international travel –
Lead 2A: Yes.
Mr Humza Yousaf: – I had a good working relationship, a professional relationship. Personally and politically, of course, often differences, but we had to just put that aside and work collaboratively as best we could in the interests of public health. But there were occasions, particularly in relation to international travel, where I was deeply frustrated with the fact that either information coming to us – and it was usually information from the JBC, the Joint Biosecurity Centre, or other sources – was coming to us at the absolute last minute before a meeting, five, ten minutes before a meeting was to start, or we were reading about an announcement of a decision already being made by the UK Government – which, again, was their prerogative, it was their right to make a decision about what countries were on what list for England, but that undoubtedly had an impact on decisions that we were then going to have to make.
Lead 2A: You say as a result of that phenomenon, at paragraph 53 of your report, that:
“… if the UK Government had decided unannounced, in relation to international travel restrictions, that a country was on the green list, the Scottish Government would often have to follow the decision made by the UK Government, as international travellers could arrive in England and travel domestically to Scotland otherwise. This is also an example of decision-making by the UK Government which was driven by an England-only understanding of policy issues.”
So from that assessment and the analysis you have given about the way in which these decision were often announced before the Scottish Government knowing anything about them in the press, it does tend to suggest in this regard that there was not a good working relationship over this important issue; is that your position?
Mr Humza Yousaf: No, again, it was done on occasion and that was frustrating but ultimately I found that where we had to work together, where we had to collaborate with the UK Government, in the areas where I had responsibility, as Justice Secretary and as Cabinet Secretary for Health and Social Care, often we could collaborate in the interests of public health. But, to be frank, it could be frustrating on occasion.
Lead 2A: What responsibilities did you have in that post for the internal border, the border between Scotland and England?
Mr Humza Yousaf: Could you say that again?
Lead 2A: Sorry. What responsibilities did you have in that post for the border between Scotland and England, the internal border?
Mr Humza Yousaf: Yes, for the internal border, again, where decisions were made, and there was periods throughout the pandemic where decisions were made around cross-border travel, the responsibility I would have would be liaising with Police Scotland, but ultimately it would be an operational decision for Police Scotland to determine how they might well enforce any ban that may have existed between cross-border travel. So my real role was with interaction with Police Scotland, accepting of course it was an operational decision about how many resources or assets they deployed to the border, but yes, my main interaction would be with Police Scotland in that regard.
Lead 2A: We understand it was certainly reported in December 2020 that there was a ban from the Scottish Government side on travel between Scotland and the rest of the UK; is that right?
Mr Humza Yousaf: Yes, I think that’s the correct date.
Lead 2A: And you would therefore – you detail in your statement you had very regular contact with Police Scotland throughout this and the whole of this period; was that something that you discussed with them as regards how that would be enforced?
Mr Humza Yousaf: I discussed the decision that was made and the Chief Constable informed me of his intention, in terms of how to react. My memory, and of course I will correct it if I’m wrong, was that he was going to double the number of patrols that were near the border at that point.
Now, there would be no checkpoints and he was very, very clear about that, but he was looking to increase the number of police assets near the border to effectively act as a deterrent.
Lead 2A: So when you say there was a ban, it seems that there was a reluctance on the part of Police Scotland to do very much about enforcing it; is that correct?
Mr Humza Yousaf: Again, I think there was an understanding also from the Scottish Government that police resources were very, very stretched. Nobody expected there to be a mass deployment of police resources down at the border. We understood how busy Police Scotland were and they were very integral to our response to ensuring public health at the time of the pandemic.
Lead 2A: Thank you.
While we’re on the subject of enforcement, I had a few questions for you about that as well. The government, the Scottish Government chose to enforce the regulations such as the stay-at-home requirements by way of fixed penalty notices; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: And we understand from your statement that the level of the fixed penalty notices were a matter which you decided upon; is that right?
Mr Humza Yousaf: Yes, that’s correct.
Lead 2A: A fixed penalty notice is, in essence, an on-the-spot fine typically issued by police officers in respect of minor breaches of the law which does not count as a criminal conviction but is recorded on police systems and may be disclosed via an enhanced disclosure application within a certain period of time; is that your broad understanding?
Mr Humza Yousaf: Yes, that is correct.
Lead 2A: Why was it that you chose to enforce – the Scottish Government chose to enforce the regulations in that particular way?
Mr Humza Yousaf: Can I say that I understand that there would be very different viewpoints on the use of fixed penalty notices and, from a government perspective, we had to have some sort of deterrent once the regulations were in place, we thought that was important in relation to compliance, but understanding that the vast majority of compliance would take place without any police interaction whatsoever.
In fact if I went a step further, even when it came to police interaction or police activity, the vast overwhelming majority of that would be done without enforcement. The police had their four Es approach, with enforcement being the very last E that they chose to deploy. And my understanding from the figures that I’ve seen is that police activity during this period – 94% of police activity didn’t require an FPN, a fixed penalty notice, whereas only 6% required that level of enforcement action.
Lead 2A: Did you or the Scottish Government more broadly give consideration to the possibility of seeking to enforce the regulations without using the fixed penalty notices?
Mr Humza Yousaf: I think our – my recollection is that our concern would be that if we used anything else, so, for example, a recorded warning, that it would not have the same impact or effect or understanding. I think we were very conscious that people understood what a fixed penalty notice was, people may have had it for speeding, littering and so on, so it was an understood – well understood system. Whereas a formal police recorded warning might not have the same impact or effect. So it was the government’s view that a fixed penalty notice was the right mechanism to use for deterrence purposes.
Lead 2A: Was it – was that not precisely potentially the problem with fixed penalty notices in this circumstance? Because whereas they might be used and there is an existing administrative system to process them for things like speeding, speeding offences are relatively cut and dry, whereas the question as to whether someone is breaking one of these regulations by, for example, not being at home without a reasonable excuse, is a much more difficult and nuanced question to answer?
I’m interested in whether consideration was given within the Scottish Government to alternative means of trying to ensure that the rules were followed other than the FPN system?
Mr Humza Yousaf: Forgive me, I would have to look over previous Cabinet discussions, but certainly I know that there was certainly an understanding that there was other systems available, such as formally recorded police warnings. I think for the confidence that we had in police officers was that every single day, I suspect, police officers have to try to exercise judgement. You’re right, there are some issues which are just cut and paste, they are dry, they are black and white, you understand exactly whether or not an offence has been committed and therefore a fixed penalty notice must be issued, but Police Scotland, police officers I think every day probably are in that area where they have to make a judgement about whether an offence has been committed or not, so there was certainly a belief in Police Scotland’s ability, if it was necessary to issue a fixed penalty notice, that they would do that in the correct and appropriate manner.
There was also an understanding amongst all of us, government, Police Scotland, that enforcement such as a fixed penalty notice would only ever be the absolute last resort, therefore we did not expect there to be a significant amount of fixed penality notices issued.
Lead 2A: The Inquiry has heard some evidence from Professor McVie on the subject of enforcement. In her statement at paragraphs 8.1 to 8.2 she suggests that internal Scottish Government correspondence suggests that Scottish ministers took the lead from the UK Government on offences and fixed penalties.Government.
At paragraph 13 of a separate document which she relies upon, she also suggests that the decision also administratively, as you’ve suggested, fitted in with an existing system of anti-social behaviour legislation.
What I’m interested to try to explore, First Minister, is the extent to which any real consideration was given to the possibility of not using this method of enforcement or whether it was simply adopted because it was the approach the UK Government had decided upon?
Mr Humza Yousaf: I think our default position was to go down the fixed penality notice route, so Professor McVie, whose evidence I’ve read, and summary of her work I’ve also read, makes some very important points for us to absolutely reflect on as a government. I think it was our default to go to the FPN – down the FPN route because it was well understood and all of our behavioural scientists would tell us that, in order to get greater levels of compliance, those decisions, regulations, guidance, all of that, should be well understood. And if it’s well understood, then there’s a greater chance of compliance.
There were some differences in terms of the FPN structure in Scotland and England, I think we had different levels of fines. If I remember correctly, our fine level slightly lower than – than what was in England, so slightly different – slight differences, but ultimately, yes, the FPN route was the default.
Lady Hallett: I’ve just had a – the transcript’s got “(Webinar freeze)”. Has that transcript got “(Webinar freeze)” at the bottom? I’m wondering whether we ought to take the break now.
Mr Dawson: We’re very close to the break anyway, my Lady, I think that sounds like a good option.
Lady Hallett: Sorry about this, but it’s obviously important. I don’t know if that means that people aren’t following it – able to follow it online.
Mr Dawson: We can look into that, of course, my Lady.
Lady Hallett: Thank you. I shall be back in – provided everything is up and running – at 3.10.
(2.57 pm)
(A short break)
(3.10 pm)
Lady Hallett: I gather we’re back up and running, Mr Dawson. If it happens again, I will continue on the basis that we can still have a transcript made, because obviously although I have a duty to make sure these proceedings are as accessible as possible, there are limits when technology fails us.
Mr Dawson: Thank you very much, my Lady.
First Minister, if I could just return to a point we were discussing a little bit earlier in the conversation, it’s been brought to my attention by the Scottish Government legal team, it related to our discussion about publication of Cabinet minutes.
We were discussing matters on the basis that Cabinet minutes would be accessible, and they’ve asked me to clarify or point out, perhaps, that in fact automatically Cabinet minutes are not released until after a period of 15 years. Is that your understanding?
Mr Humza Yousaf: Yes, we just released a whole tranche of papers, in fact –
Lead 2A: Yes, but – but for our purposes in our discussion, I think the material point is: do you accept that documents which exist are susceptible to a Freedom of Information request by an interested citizen, documents which do not exist are not, isn’t that right?
Mr Humza Yousaf: Yes, yes, and I think I, in answer to your question, referenced FOI, because that’s exactly how somebody might be able toll obtain some documents. Of course exemptions do apply to FOI legislation, but yes, that’s correct.
Lead 2A: Thank you very much.
We were talking before the short break about the process which had been undertaken to try to work out how Scotland would go about enforcing the relations, and you told us about some of the processes. You intimated that Scotland had some differences, although the fixed penalty notice system was broadly similar to that in England.
One other matter which has been brought up with other witnesses is the fact that one difference was that Scotland’s FPN system applied to 16 to 18-year olds. This was a matter which, again, was covered with Professor McVie.
What active consideration was given to that difference between the UK Government system and the Scottish Government system such that younger people would be caught by the FPN system in Scotland?
Mr Humza Yousaf: Yes, it’s my recollection, though, again, I’ll be happy to be corrected if wrong, but that of course was changed by regulation –
Lead 2A: It was changed subsequently, yes.
Mr Humza Yousaf: Yes – and pretty early on after regulations were passed, in order to bring us into line with our requirements in relation to the United Nations Convention of the rights of the child, so it was raised to 18. The reason why that was perhaps not given consideration early on was the thinking that if this was to act as a deterrent, it should capture as many people as possible in order to then subsequently have the public health benefits. But on reflection that wasn’t the right calculation to make, or the right factors to consider. The correct factor in relation to those who are 16 to 18 is, of course, their rights, and that’s why we made the change, as I say, to align us more closely with the UNCRC.
Lead 2A: So the change was made, you’re absolutely right, First Minister, it was – the Coronavirus (Scotland) (No.2) Act amended the existing regulation 9 to raise the age to 18, which came into effect on 27 May 2020. However, what I’m interested in is the extent to which consideration was given to Scotland’s – the Scottish Government’s international obligations with regard to children in setting the age at 16 at the start. Was that considered?
Mr Humza Yousaf: Again, my recollection is that the default position that we landed on at the beginning was FPNs to include 16 to 18-year olds, so we were always, throughout any decision that was made, always trying to balance a number of rights. So, again, I would have to look over previous discussions and minutes. I would be surprised if we did not consider whether or not we should raise the age at that point, but decided on balance not to. But of course that was again subsequently changed upon further reflection and representations made by the likes of the Children’s Commissioner, Scottish Human Rights Commission and others.
Lead 2A: In her report Professor McVie suggests at paragraph 8.3 that there is no available evidence to suggest that Scottish or UK lawmakers gave consideration to equality issues in respect of the decision to use fixed penalties. Is that a correct assessment of the position?
Mr Humza Yousaf: It is technically correct, although we used EQIAs, equalities impact assessments, across a range of different decisions. I don’t think –
Lead 2A: – I’m interested in –
Mr Humza Yousaf: – specifically on the issue around fixed penalty notices.
Lead 2A: So there was no such assessment and Professor McVie’s impression is correct?
Mr Humza Yousaf: Her impression is correct.
Lead 2A: Thank you very much.
In January 2021, as we know, the Scottish Government introduced a new stay-at-home order and some consideration was given around that time, as I understand it, to the way in which the enforcement should continue over that period, and you were involved in that at that time; is that correct?
Mr Humza Yousaf: Yes, that’s correct.
Lead 2A: Could I look, please, at INQ000214456. I’m looking at paragraph 20, please.
Excuse me just one second.
Yes, sorry, I think I have – I think it’s subsection (h). This is from the minutes of 4 January. It says there – obviously there was a question about how enforcement should work in the second lockdown, effectively. You said – where it says:
“Mr Yousaf undertook to speak to the Chief Constable to ensure that enforcement actions were being taken forward with due speed and rigour, based on a ‘maximalist’ approach, and that it was likely this would be met with a call for increased police resources. In addition, Environmental Health Officers, with appropriate police support, would need to enhance their monitoring of compliance with local restrictions.”
“Maximalist approach” appears in inverted commas; was that your expression?
Mr Humza Yousaf: I don’t recall if it was my expression or another Cabinet secretary’s expression, but I certainly associated myself with the remarks and with that approach.
Lead 2A: Whether you used that exact word or not, what was meant by that approach?
Mr Humza Yousaf: Yes, what was meant by a maximalist approach was – and, again, setting the context exactly as you have already done – that we were dealing with the resurgence of the virus, I think at that point a new variant of the virus recently having been discovered, more transmissible than the previous, real concern around the spread of that virus, and therefore a real need to ensure that restrictions were abided by. So “maximalist approach” meaning, I suppose, what is said in – in the rest of that sentence, that there would be a greater police resource allocation towards enforcement of the regulations, and again that enforcement always took that four Es approach, with enforcement being the very last resort.
Lead 2A: Does it not suggest that there should be more emphasis on the enforcement element rather than the other Es in the policy?
Mr Humza Yousaf: No, not necessarily. It’s a maximalist approach, so trying to cover – I think it’s trying to cover geographically as much of the country as we could but also the various sectors and elements of the society where regulations impacted and affected, and therefore a greater coverage of police resource may well be required, hence the rest of the sentence:
“… likely that this would be met with a call for increased police resources.”
As opposed to any additional focus on the enforcement element. That was never a conversation that was had. The Chief Constable was very, very – the former Chief Constable was always very, very keen to stress to me that he did not want the policing by consent model to be diluted in any way, shape or form, and that he and his officers would always put an emphasis on the first three Es, the engage, the explain, the encourage, before they would end up at the enforcement space.
Lead 2A: What equality impact assessment was done of your proposal that there should be a new maximalist approach?
Mr Humza Yousaf: I don’t think there would be an EQIA on a decision to, for example, increase police resource. There will have been EQIAs in relation to the regulations themselves, but you wouldn’t necessarily do an equalities impact assessment on an approach, an operational approach, that was perhaps taken.
Lead 2A: It would be important in order to try to adhere to the four Es approach that you’ve referred to that people should be able to understand the regulations clearly; is that correct?
Mr Humza Yousaf: That is correct.
Lead 2A: What was done at this time in particular to try to ensure that people understood precisely what the regulations were?
Mr Humza Yousaf: A whole range of activity. Of course, the well watched media briefings were going to be important. There was communication that would have gone out from the government, where necessary from Police Scotland as well, and that would be materials not just on the television, on the radio, social media assets would be deployed as well. So we always endeavoured to do our best to ensure that there was as wide understanding as possible of the regulations and indeed the guidance, and we know that at times and on occasion that could be particularly complex.
Lead 2A: The rules required to be clear so that people could comply with them; is that correct?
Mr Humza Yousaf: Yes, as clear as they could be would help in relation to compliance, yes, that’s correct.
Lead 2A: Could I go to INQ000334792, please.
This is from a later period when you had moved into your new position as the Cabinet Secretary for Health and Social Care. I would like to ask you some questions about an exchange in this page, on 19 November 2021, from 19.58. Again, this is one of your regular conversations with Professor Leitch. You ask a question of Professor Leitch:
“… I know …”
You refer, in the blank passage, to an event that you’re going to attend, and it says:
“… I know sitting at the table i don’t need my mask. If I’m standing talking to folk need my mask on on?”
You ask.
Professor Leitch says:
“Officially yes. But literally no one does. Have a drink in your hands at ALL times. Then you’re exempt. So if someone comes over and you stand, lift your drink.”
And then you say in response to that, after a couple of further comments, at 20.05:
“That’s what I’ve been doing at the other events I’m at…!”
When you, the Cabinet Secretary for Health and Social Care, feel the need to clarify the rules about face masks, what chance do others have in understanding the rules?
Mr Humza Yousaf: Look, again, as – let me try to wrap some context, if I can.
As the Cabinet Secretary for Health and Social Care I didn’t just double check the rules, triple check them, I would quadruple check them if I had to, because the intensity of the public scrutiny that we were under, as politicians of all stripes and colours, but particularly as the Cabinet Secretary for Health, I knew that I would always be under scrutiny to make sure that I was absolutely following every regulation and every guidance. And so it should be thus, that is absolutely right and I’m not complaining about that. So it would not be unusual for me to check in with either the National Clinical Director, Professor Leitch, or the CMO to, as I say, double, triple, quadruple check my understanding of particular nuances in relation to guidance. I always wanted to make sure that I was absolutely complying. And this was a nuance in particular guidance.
And I also can’t deny, Mr Dawson, that there was times when the rules were complex and we got ourselves into a position, I remember, during the course of the pandemic where we were talking about things like “vertical drinking”. I mean, these were phrases that we hadn’t used before, didn’t mean much to folk, and we were responding in real time to events, trying to balance the four harms as best we possibly could.
So I would say on the vast overwhelming majority of cases when we produced regulation and the associated guidance they were well understood, but clearly – I believe one of the lessons we could and should learn is that in a development of that guidance could we have taken a bit more time, engagement sometimes with industry, be it hospitality or others, and was there more that we could have done to simplify some of the more complex guidance, as this was.
But look, my ultimate assertion is that for the vast overwhelming majority of cases the rules were well understood, aided by media briefing, aided by additional marketing, social media campaigns, et cetera.
Lead 2A: The requirement to wear a face mask in certain circumstances was a part of the Scottish Government’s strategy towards fighting the virus at this time?
Mr Humza Yousaf: Yes.
Lead 2A: It was an important part or else it wouldn’t have been part of the strategy; isn’t that right?
Mr Humza Yousaf: That is correct, yes.
Lead 2A: Was it a matter of concern to you that the National Clinical Director informed you that “literally no one” follows this particular rule?
Mr Humza Yousaf: Again, for those that know Jason, I think by his own admission he would perhaps have a casual way of speaking and perhaps overspeak, as he described it. So when he says “But literally no one does”, that to me suggested that yes, on this particular nuance, when it comes to being at a dinner or a reception, that when standing speaking to people there wasn’t people wearing masks as per the guidance we had.
Lead 2A: You were seeking his counsel as regards what the rule was; isn’t that right?
Mr Humza Yousaf: Yes.
Lead 2A: And, as you said already, as the Cabinet Secretary for Health and Social Care, you were under particular scrutiny to follow the rules to the letter; isn’t that right?
Mr Humza Yousaf: Yes.
Lead 2A: Professor Leitch was giving you a loophole or a work-around to try to enable you not to comply with the rules; isn’t that right?
Mr Humza Yousaf: No, again, I was asking if I – just a clear clarification on how to comply. He was of course telling me how to comply. If someone comes over to you and you stand and you lift your drink, so if you have a drink in your hand, if you’re sipping, taking a drink, then obviously you cannot do that with a mask. I never asked for a work-around or how not to comply, and neither would I suggest that he was giving that.
For me, it was important, given the public scrutiny, in my role, that I absolutely double and triple checked the rules, and I did that on occasion with Jason, sometimes with others as well.
Lead 2A: Thank you, First Minister.
I’m sorry to jump around in the time, in the chronology, but I would like to ask you a question about something which happened again in your first role, before the election.
Could I look at INQ000334682, please.
This, again, is in a slightly different format, I think, some of the WhatsApp messages that you helpfully provided to us. It’s a WhatsApp exchange. The one I’m looking at is between yourself and Mr Swinney. I’m looking at 19/6/2020 at 10.26.
Mr Swinney says to you that you have just caught up with the “latest insight into SPF thinking”.
Is that the Scottish Police Federation?
Mr Humza Yousaf: That’s correct.
Lead 2A: And you reply:
“They’re a disgrace. Right through this pandemic they have shown an arrogance and retrograde thinking, Chief was livid last night.”
Can you explain, please, in what regard the Scottish Police Federation were, in your view, a disgrace?
Mr Humza Yousaf: Well, again, this was me expressing my frustration in a – what would have been a private conversation with a colleague, and sometimes you – when you are venting those private frustrations to a colleague, you use language that you regret.
Look, I had a good relationship with the Scottish Police Federation. We didn’t always get along, the previous leadership of the Scottish Police Federation – in fact I think it’s fair to say at times we would have very robust disagreements.
My concern in this particular instance, if I remember correctly, was that I didn’t think that they were being supportive of the Chief Constable, and police officers more generally, in relation to enforcement of regulations, and I thought that the way they articulated that was deeply, deeply unhelpful.
Lead 2A: These were the people upon whom you relied, the police officers, to enforce the regulations which the government had imposed; isn’t that right?
Mr Humza Yousaf: Police Scotland of course and police officers, as part of Police Scotland, were the ones that we relied on. Of course the Scottish Police Federation were the professional body that represented police officers. But my concern was not with police officers or individual police officers, far from it, I had the greatest amount and continue to have the greatest amount of respect, they were absolutely integral to our public health efforts. My concern was with the leadership, at the time, of the Scottish Police Federation, with whom, as I say, had a good relationship, one where we spoke on – on regular occasion had robust exchanges. But at this point, as I say, venting a frustration to a colleague in a private space.
Lead 2A: Thank you.
I’d like to ask you some more questions, please – again, sorry to jump around in the timeline – about the period during which you were Cabinet Secretary for Health and Social Care. It might be helpful, first of all, to try and place your appointment in some degree of context before we do so in terms of what happened over the period but in particular what the state of the pandemic was at the time of your appointment.
In April of 2020, Scotland’s R number – sorry, 2021 – had fallen for the first time in four weeks, dropping from between 1 and 0.8 to 0.7 to 0.9.
On 25 April free lateral flow kits had been made available for anyone without symptoms.
On 26 April there had been a significant opening up, with non-essential shops, gyms, swimming pools, pubs, restaurants and cafés allowed to re-open, while travel between Scotland and the rest of the UK was also permitted again.
On 6 May, which was the day of the election, you’ll recall, First Minister, public health officials warned in that Moray they were experiencing an uncontrolled sustained community transmission of Covid-19, with a case rate of 81 in 100,000.
On 17 May most of mainland Scotland, with the exception of Moray and Glasgow, moved from level 3 to level 2 restrictions, allowing pubs and restaurants to open for indoor service.
And indeed, as I think we’ve seen from some earlier messages, there was a concern – really at almost exactly the point of your appointment, First Minister – about cases started to rise in the Glasgow area.
Does that give a fair description as to the background of the situation that you walked into, or are there any other salient features of the pandemic that you would wish to point out?
Mr Humza Yousaf: No, I think that’s a fair description of the point by which I was appointed. I think the only thing I would add to that is there continued to be extreme pressure on the health service as well –
Lead 2A: Yes.
Mr Humza Yousaf: – and usually by spring, outwith the pandemic, you could begin to see some sort of easing, though you’d tend to have respiratory viruses sometimes during the Easter holidays, but you would tend to see a bit of easing. That was simply not the case. Other than that, I think you’ve covered the salient points.
Lead 2A: Looking prospectively during the period in which you did serve in the post up to April 2022, the period in which we are interested in this module –
Mr Humza Yousaf: Yeah.
Lead 2A: – would it be fair to say that your period in office was characterised by very considerable rises in the number of cases, broadly speaking, from around about the summer of 2021?
Mr Humza Yousaf: Yes, there would be fluctuations, of course there would be, but at the time that I was appointed there was a number of waves of the pandemic and of course in 2021 we also then had to deal with the Omicron variant.
Lead 2A: Yes, if we just take it in a stepwise fashion, we’ve seen some evidence from some statistical experts that in the summer of 2021, not long after your appointment to this post, cases started rising significantly and that was associated with the Delta variant of the virus; is that your broad recollection?
Mr Humza Yousaf: Yes, it is.
Lead 2A: And as you say correctly, cases remained high, they were up and down, but they remained comparatively high in Scotland compared with the rest of the United Kingdom over that period. Do you remember that being the case?
Mr Humza Yousaf: Over what period?
Lead 2A: The period from the summer till the Omicron arrival towards the end of the year that you described.
Mr Humza Yousaf: Yes, cases were fluctuating, rising often. In terms of how they compared to the rest of the UK throughout that period, from the summer till the arrival of Omicron, there will have been, I’m sure, periods where case numbers in Scotland – the R number may well have been lower than other nations in the UK, but, for a period, absolutely, were higher.
Lead 2A: I’m simply seeking to paint a broad picture, First Minister, we have been through the detail of it with other witnesses, but, as you say, what then happened towards the end of the year is it was a further wave of the Omicron which was a much more transmissible variant of the virus, resulting in huge increases in the number of cases in Scotland; would that be broadly fair?
Mr Humza Yousaf: Yes.
Lead 2A: We’ve seen some statistics that would suggest that at the peak of the Omicron wave 8% of people in Scotland were infected whereas at the peak of the first wave only around 1% were infected, based on analysis of retrospective figures. So there were huge numbers of infections to deal with. And is that broadly, again, your recollection?
Mr Humza Yousaf: Yes, absolutely.
Lead 2A: Again over this period we’ve seen evidence that although the Omicron variant was generally deemed to be less virulent, it was much more transmissible, but it also resulted in Scotland, in this third wave combined, in very nearly as many deaths as had occurred in each of the first two waves, with somewhere around about 5,000 deaths having occurred in each wave, broadly. Again, is that broadly your recollection of the experience that you had as Cabinet Secretary over that period?
Mr Humza Yousaf: Yes, I couldn’t swear by the exact number, but broadly – broadly that’s –
Lead 2A: I’m simply seeking to illustrate that, even although Omicron was less virulent, it was way more transmissible.
Mr Humza Yousaf: Way more transmissible, highly transmissible.
Lead 2A: Which resulted in the same number of deaths in this third wave as there had been in each of the first two waves; was that broadly your recollection?
Mr Humza Yousaf: Yes.
Lead 2A: And another characteristic which you touched upon yourself of this period was that, in many areas, hospitals started to become overwhelmed; isn’t that right?
Mr Humza Yousaf: Extreme pressure on our hospitals, yes.
Lead 2A: Many health boards required to suspend non-urgent surgery at different times?
Mr Humza Yousaf: That is correct. Particularly in the run-up to winter they had to make the really difficult decision of stopping elective care, in some cases, altogether.
Lead 2A: The military required to be called until at times to assist?
Mr Humza Yousaf: Yes, we made MACA requests at times, in relation to ambulance services in particular.
Lead 2A: You described at one point over this period as Scotland – the situation as Scotland facing a perfect storm; do you recall that?
Mr Humza Yousaf: I do.
Lead 2A: Given that NHS capacity had been such a priority in the strategy which had been adopted in connection with the first wave of the virus, why was it that hospitals were allowed to become overwhelmed in this wave of the virus?
Mr Humza Yousaf: It wasn’t the case that they were “allowed to become overwhelmed”, we had a perfect storm of issues and factors that came together. We had, as you have very well articulated, a highly transmissible variant of the virus. We had, of course, been opening up society; that was right because of the vaccination programme. We had some element of other respiratory viruses, although flu didn’t hit in as big a way as it did in 2022. And of course we had the other peak pressures that you tend to see during the winter period.
But when you have a highly transmissible variant, as Omicron was, way more transmissible than previous variants, hitting you at about the winter time, where of course not just where you often see other respiratory viruses but people tend to mingle more, go to social events more often, Christmas parties, New Year functions, then all of these factors coming in together made the pressure on the NHS extreme.
Lead 2A: You say in your statement at paragraph 23 that you were provided with advice, information and evidence from a myriad of clinical and scientific experts, Scottish and intergovernmental advisory groups and stakeholders. Then you say at paragraph 63 that there wasn’t a risk of information overload or repetition for key decision-makers.
Would it be fair to say that the main person to whom you turned for clinical, rather than medical, advice was Professor Leitch?
Mr Humza Yousaf: Yes, and the CMO, who would attend virtually every Cabinet, but I probably spoke to the National Clinical Director more than I spoke to another clinical expert.
Lead 2A: But on a day-to-day basis the WhatsApps, which you helpfully provided, show you interacting with Professor Leitch on a regular basis?
Mr Humza Yousaf: Yes.
Lead 2A: Sometimes several times an hour in relation to queries which have arisen from your analysis of the paperwork or the issues and seeking counsel from him. Was that your default position, to use your own expression?
Mr Humza Yousaf: Yes. It would depend also on the nature of the advice that was required, but yes, I would turn to Professor Leitch as the health adviser and a clinical expert when I needed that health advice. And you’re right, that could be multiple times a week, it could be multiple times a day, depending on what was going on at the time.
Lead 2A: You say it would depend on the type of advice that would be required as to when you would turn to Professor Leitch or perhaps others. What advice would you seek from others that you wouldn’t seek from Professor Leitch?
Mr Humza Yousaf: So, for example, if there was issues particularly in relation to – to medicines, to antiviral treatments, I may well go to Alison Strath, who was the Chief Pharmaceutical Officer at the time. So dependent on what was needed or what was required, it’d depend who I’d go to.
But I’m not arguing with your assertion, your assertion is correct, but in terms of my health advisers – which I have to say were excellent throughout the course of the pandemic – I would most often go to Professor Leitch.
Lead 2A: We have looked at the paperwork for the Scottish Covid Advisory Group over this period, of which you’ll no doubt be aware and we’ve heard evidence from a number of its prominent members. One thing which is perhaps striking about the frequency of the meetings of that group is that they became very less frequent in the period when you were in this particular position. From June 2021 they met only monthly, although they had met much more frequently previously, with the exception of a cluster of meetings in December of 2021 in connection with the Omicron threat that we’ve discussed.
Was it the case that very much less advice was sought from that expert group and more reliance was placed on the in-house medical and clinical and scientific advisers, given the fact that over this period attention had turned away from managing the threat of the virus and towards managing the recovery from Covid?
Mr Humza Yousaf: I think from my perspective it was only natural that the C-19 advisory group would be relied on more heavily in the early days of the emergency phase of the pandemic, while we’re still trying to grapple with the epidemiology of the virus, the characteristics of the virus, and of course work was still ongoing in relation to a vaccine, what can you do in relation to NPIs – non-pharmaceutical interventions in advance of a vaccine, so the reliance on an advisory group that would often engage with the CMO or would give written submissions to Cabinet secretaries or the government as a whole, the reliance on that group would have been far greater when the group first set up and in that real emergency phase of the pandemic.
You’re right to point out that the frequency of the meetings increased when the Omicron variant came in, and that stands to reason, because during the recovery phase by this point, by just kind of pre-Omicron, we would have had a good handle on understanding the characteristics of the virus, we would have had, of course, our vaccination programme under way, we would have understood the non-pharmaceutical interventions and the impacts that they would have on the virus and containment and delay of the spread of the virus. But where we needed that C-19 group, for example, if a new variant came on, and to understand its impact and effects, then we knew we could always rely on the C-19 group.
And there was, of course, other groups, which I know the Inquiry is well aware of. Some are UK level, SAGE, NERVTAG and the Joint Biosecurity Council(sic), UKHSA, and some, of course, at a Scotland level that we could rely on too.
Lead 2A: Eight times as many infections as in the first wave, almost 5,000 deaths, hospitals overwhelmed, the military called in. Why was this not an emergency phase of the pandemic?
Mr Humza Yousaf: The emergency phase that we tend to talk about, I think, was pre – when the virus first came and arrived into the UK and therefore the very first non-pharmaceutical interventions had to be considered. In my experience, and I said this, I believe, at the time, this was an emergency in relation to our health service, there was no doubting that, but you yourself have used the phrase that this was seen as the recovery phase. I think that’s right, we were generally seen as being in that recovery phase at this point. But was it a health emergency? Was it a health crisis? For sure. We were facing the most extreme pressure that the NHS had seen at that point in its over 70-year existence. I think, again, up until that point, the winter of 2021, I don’t think the NHS would have had a more difficult winter in its history.
Lead 2A: In the period before your appointment we’re aware of a number of what were called “deep dive” meetings taking place – there were a number of deep dive meetings in a number of different areas but the deep dive meetings with the Covid-19 Advisory Group?
Mr Humza Yousaf: I was aware of them.
Lead 2A: On various issues, testing and the like?
Mr Humza Yousaf: I was aware of them.
Lead 2A: In the period when you were Cabinet Secretary only one such meeting took place as far as we’re aware, right at the end of the period in which we’re interested, to do with the future of Covid.
Is it the case that in this significant health emergency, more reliance should have been placed on that expert group in order to assist with the response?
Mr Humza Yousaf: Not necessarily. And the example that you gave I think is very pertinent. You mentioned the C-19 group did a deep dive, I think you said testing or the like. So that’s right by this point of course we’d have had a testing system, Test & Protect, well established, up and running, well under way, a vaccination programme well understood, well established, well under way, so we wouldn’t have to call the C-19 Advisory Group back in to begin to do deep dives into well-established protocols.
Given the Omicron was another wave of the virus, although I absolutely accept fully that it was a more highly transmissible variant of the virus, we knew what we had to do in – when we were hit with waves: we knew we had to look at NPIs, we had to look at the route map, we had to look at the four harms considerations that we had to take, and we had to make decisions on what action we were going to do based on the four harms, protecting people’s health, the indirect health issues, societal impacts and of course the impact on the economy as well. But the C-19 group I always knew was available should it be required during any point in the pandemic.
Lead 2A: It may have been available, what I’m suggesting to you is you didn’t use it.
Mr Humza Yousaf: But again I go back to the point of why it wasn’t used as often. Now, the C-19 group would often engage with the CMO. The CMO would then – I would have regular engagement with the CMO and then regular engagement – sorry, the CMO would attend Cabinet virtually every single week during this phase. My point being is that the C-19 group, as you yourself said, was there to help with deep dives into things like testing. These were already established. I wouldn’t have to bring the C-19 group back in to have a deep dive into testing established, vaccination established, and so on and so forth. But, again, there was advisers available within the C-19 group should I have needed them bilaterally as well as part of a group.
Lead 2A: Even although systems were in place, would that C-19 group not have been able to assist with the strategy in this further emergency phase of the pandemic?
Mr Humza Yousaf: I think, again, advisers took advice from clinical advisers, from the Chief Medical Officer, from the chief executive of the NHS, from health boards directly, from experts in social care, a range of experts and advisers, but I think we knew, given that we were facing this highly transmissible variant, one of the pieces of advice that we got was that we had to increase quite significantly the booster vaccine programme, and that’s why the decision was taken to implement what was known as the “boosted by the bells” programme, effectively, getting as many people their booster vaccination before the end of the year.
Lead 2A: What briefing did you receive on taking the post about the role that vaccination was likely to play in the pandemic in Scotland in that period?
Mr Humza Yousaf: When I first came into role – again, I would have to look back over of course paperwork, but there was no doubt at all even before I was in the role as health secretary that we all knew what a game-changer the vaccination was.
Now, the question when a new variant always came into play was whether or not it had what was termed at the time – it’s still used, the terminology – immune escape, and for me there was no doubting at all when I had my first briefing with the Chief Medical Officer, with the National Clinical Director and others that vaccination was the game-changer in how we respond to the virus and open our society back up as best we can in the face of Covid-19.
Lead 2A: In her evidence Professor Devi Sridhar, she was of course a member of the Covid-19 Advisory Group, she explained that at the time when the vaccination programme started, which was towards the end of 2020 increasing into the beginning of 2021, that her advice, her role in providing advice relating to what was known within the four harms strategy as harm 1, the harm caused by the virus, diminished, on the basis that her role had been more prominent in fighting the virus in the period before that.
Was it the case that your impression of the vaccine being a game-changer resulted in the fight against the virus, harm 1, getting less attention than it ought to have done?
Mr Humza Yousaf: It’s not my impression at all. And maybe I’m saying this as the person who was Cabinet Secretary for Health and Social Care, but harm 1 was always the one that was at the forefront of my mind. Harm 1 and harm 2 are probably the ones that were the most forefront of my mind, given that I was Cabinet Secretary for Health and Social Care from May 2021 to – the period of interest to you. So for me there was never any dilution, diminution of harm 1, it was at the forefront of our minds as a government constantly throughout the course of the pandemic.
Lead 2A: As far as harm 2 is concerned, which you’ve mentioned, obviously that would fall within your remit as well because although it’s not Covid harms – there’s other health harms –
Mr Humza Yousaf: Yes.
Lead 2A: – to remind people – what information were you provided with in order to try to manage the extent of that harm?
Mr Humza Yousaf: Again, I think when we had conversations, we were alive and alert to obviously all four harms. In respect to harm 2, particularly the impact on mental wellbeing, the most important thing that I could do was speak to those who were directly impacted, or represented those who were directly impacted, by harm 2, in particular if I think about the mental wellbeing aspects that people suffered, or chronic illnesses that they suffered, then I would often engage with those representative groups or indeed those with lived experience directly – as well as getting the usual briefing. There would always be briefing made available. When you first come into position you’re given multitudes, plethora of briefing to get your head round, but the best briefing, if I could put it that way, that I received in relation to harm 2 was undoubtedly the engagement with those that had been impacted not by the direct effects of Covid-19 but the perhaps indirect health consequences.
Lead 2A: Given the significant consequences which occurred over this period within the health service, non-urgent healthcare having to be cancelled in a number of health boards, is it not the case that, irrespective of the efforts that you have described as having taken with regard to harm 2, significant non-Covid harm was caused to the people of Scotland over this period?
Mr Humza Yousaf: There’s no doubt at all that when you cancel elective surgery people waiting on a waiting list is not a benign act, there’s completely – there’s absolutely an impact –
Lead 2A: So the discussion – sorry.
Mr Humza Yousaf: So there’s undoubtedly an impact on their health. It may be chronic health, it may be that hip replacement that Mrs Smith needed and that she now had to wait a year later would undoubtedly mean further deterioration, deconditioning and then impacting the quality of her life. That was absolutely a harm that we had to try to balance, and that’s why nobody took the decision at that health board level, government level or any other level, to stop elective care lightly at all. We absolutely understood that if we took these decisions to protect people from – and protect their lives in relation to the first harm, harm 1, then that would have an impact potentially on other aspects, including those that fall under the bracket of harm 2.
Lead 2A: During the period when you were Cabinet Secretary for Health and Social Care, significant harm under harm 1 was done, the virus was rampant, thousands of deaths, and record levels compared to the rest of the pandemic and the rest of the UK as regards the number of infections; is that correct?
Mr Humza Yousaf: Well, I would say that the emergence of Omicron, and of course the Delta variant that was more transmissible than the Alpha variant before it, that was the reason why we had high levels of infection, and in terms of Covid deaths that was a result of course of the Omicron variant, not because – and I would contend – of particular policy choices that I made as Cabinet Secretary for Health and Social Care or indeed that the government made. We were dealing with a highly transmissible virus that you have rightly described in your earlier contributions as being far more transmissible than the previous variant.
But yes, that resulted, I’m afraid, in a number of people losing their lives.
Lead 2A: As far as harm 2 is concerned, again I think the position is there was record levels of harm under harm 2 because of the hospital closures and pressures; is that not correct?
Mr Humza Yousaf: Again, your definition of “record levels” but there were certainly people because we took decisions to stop elective care then they would be added to the waiting list. Of course we took action to try to increase, for example, spend on mental health, as best we possibly could, to try to make sure that we dealt with some of the harm 2 impacts, such as on people’s mental wellbeing.
Lead 2A: One of the aspects of the management of the pandemic over this period was a number of issues and questions that you had to address with regard to large scale events; would that be fair?
Mr Humza Yousaf: Yes, absolutely.
Lead 2A: There were issues that arose about the Euros and the opening of fan zones in particular –
Mr Humza Yousaf: Yes.
Lead 2A: – is that right?
Mr Humza Yousaf: That’s correct.
Lead 2A: And there was also the issue of COP26, which has come up a few times in our evidence, and the management of infection around that, given the number of people involved and the fact that that was obviously an unusual event; that’s also correct, isn’t it?
Mr Humza Yousaf: That is correct, yes.
Lead 2A: Could we look, please, at the Euro fan zone position, again some WhatsApps, please.
INQ000334792.
This is an exchange between yourself and Jason Leitch again in which there is some discussion, as one sees this regularly, between the two of you about what you were going to do and what the solution is, and at 13.39 you – just get that up, yes, thank you, you say:
“At its lowest over the last 7 days we saw Glasgow case numbers dip to around 87 new cases, obviously now seeing an increase over the last two days – test [percentage] remaining relatively stable?
“Understand FM’s worry about losing the dressing room, but can’t do anything other than leave Glasgow in Level 3 for now.
“Big question (and opposition are asking it, not unreasonably) what is the way out? Are we doing enough here to break the community transmission. Instead of just targeting the hotspots does enhanced testing/prioritising vaccines etc need to be done city-wide?”
Then there’s a further discussion about all of this.
And then at 14.02 this is particularised in relation to the question about whether the Euros should be allowed to – well, whether events relating to the Euros should be allowed to proceed.
Jason Leitch says:
“And I agree. If trajectory continues and doesn’t accelerate everyone down a level. That would allow EUROS.”
He then says:
“Cancelling crowds and the fanzone would be VERY difficult.”
14.04, you say:
“That’s the danger though. Football is on, pubs open, lots of people mingling indoors including in households to watch the game, all the while Glasgow is still picking up 100-odd new cases a day…”
And there’s some surprise .
Then over the page, at 14.07 you say:
“All that said, we will lose the dressing room. People want to watch the match with friends and family, after waiting 23 [years] for Scotland to qualify.”
Further exchanges, and then you say at 14.11:
“To mitigate the surge in cases, we will possibly see as a result of the Euros, not better keeping Glasgow in Level 3 as long as possible before the first game…fanzone makes that tricky right enough.”
Then at 14.29 Professor Leitch says:
“So more testing. Case finding. Exactly what we want. As trump said, the problem with you public health idiots is if you do tests you find disease.”
So this is a discussion between the two of you about the case rises in Glasgow and the extent to which it would be wise to continue with the planned fan zone in Glasgow to allow people to watch the Euros; is that right?
Mr Humza Yousaf: That’s absolutely correct.
Lead 2A: And I think your position here, as I understand, is that you are quite concerned about whether these events could be allowed to go ahead, given the fact that the background is there’s high levels of cases, and you are rightly debating that with Professor Leitch; is that right?
Mr Humza Yousaf: Very concerned.
Lead 2A: Could we then go to pages 12 to 13. I think it’s the same exchange, yes, 4792, pages 12 to 13.
This is now on 10 June, I’m looking at 10/6/2021 at 11.45. Just up at the top there you can see Professor Leitch says:
“And it still goes on…FM wants more advice. Her instinct says cancel fanzone. Her office will write back (which Ken is writing) to ask for more and then Ken will gather the legal etc to reply.”
Then there’s a further exchange. You indicate that there’s been some attention paid to the cost of cancelling the event, which might be £6 million. You raise the question of whether that would or would not include compensation for those who have lost money.
And then at 11.55 Professor Leitch says:
“Yep. I think that’s costs not profit.”
In the £6 million analysis.
And then he says:
“She needs to do it before or at FMQs if at all.”
And you say:
“I’ll tell you what, from knowing her for 15 [years], it is not often her instincts are wrong.”
And ultimately I think the position is that the fan zone is allowed to go ahead.
Does this exchange show you being very concerned, understandably, about the situation in Glasgow, but ultimately there being a reliance on the First Minister’s instincts as to what to do?
Mr Humza Yousaf: No, I think the exchange is an understanding that this is not an easy call. You’ve got high case numbers in Glasgow, you’ve got a huge footballing event, for which Scotland have qualified for the first time in over 20 years, and you’ve got to make a decision about whether or not a fan zone, which is an outdoor fairly regulated space, and I went to the fan zone to see it myself, hand hygiene systems in place, one-way systems in place, six – and so on, we put other mitigations which I can talk to as well. Do you have that highly regulated space? And if you don’t have it, then do more people go into spaces which are more conducive to the transmission of the virus, ie into pubs or in each others’ households, less ventilation, less regulation of the space? And which one do we go with?
And ultimately I remember the First Minister was asking questions to which, to be frank, you would not be able to answer: if you close the fan zone, how many people, extra people end up in pubs? And therefore this was – I think the message exchange demonstrates that this was not an easy decision to make, and saying that: yes, the First Minister who – the former First Minister had shown very good instincts, I believe, in relation to decisions being made in regards to the pandemic. There was ultimately a decision that had to be made here and we had provided her clinical advisers and I had also spoken to her, of course, about the fan zone and given my view, but it was not an easy decision to make at all. I think ultimately the right decision was made, given the mitigations that we were able to put in place in relation to testing and so on and so forth.
Lead 2A: My question was whether ultimately it was a matter which relied – this very difficult situation with lots of different considerations, financial, health, moving picture – ultimately that relied on an instinctive judgement by the First Minister?
Mr Humza Yousaf: No, didn’t rely on that. Her instinctive judgement was important but it relied on, I think, being – all of those involved in the decision being confident that the appropriate mitigations were in place and understanding the impacts and potential effects of cancelling the fan zone and what that would mean for public health as well as other issues too.
Lead 2A: There is a further exchange at page 17, which is a little bit later, I think after, perhaps, the fan zone has, at least to some extent, been in existence. This is now on 24 June, looking at the exchange, which starts at the 24th at 12.26.
You are discussing, I think, the position with regard to the numbers and you say:
“I was certain we’d be well above the 3,000 mark…
“Just doesn’t feel right that we aren’t effectively able to do anything in the immediate and short term to drive those numbers down, other than imposing restrictions, which as the FM says the public just wouldn’t stand for.”
Professor Leitch says:
“Keep your fingers crossed it [is] a temporary Euros phenomenon.”
The expression “keep your fingers crossed” is one which appears on a number of occasions in these exchanges. Is it the case by this stage that you were relying on instinct and luck to manage the pandemic?
Mr Humza Yousaf: No, I would reject that charge in its entirety.
Look, I’m – I was the Cabinet Secretary for Health and Social Care, I was always going to be the guy in the Cabinet that pushed for us to go the hardest, the fastest, to do more in terms of NPIs and restrictions I suspect that is true of every health secretary right across the United Kingdom. That was often our position, and my position as Cabinet Secretary for Health was no different.
So there was occasions in Cabinet and in gold command other fora where I would be pushing harder, but ultimately it became a collective decision and in this case, for example, the First Minister, the former First Minister’s belief that if we had imposed restrictions, particularly during the Euros, the public just would not accept it. And that, of course, would be dangerous for compliance and then we would not just lose the public, which was important in relation to future compliance, but we’d also have no impact on the virus either.
Lead 2A: You used the expression in one of the passages I went to there, the possibility of “losing the dressing room”, that expression features on a number of occasions in your exchanges with Professor Leitch. Again, at this stage, are you effectively suggesting that although there is good evidence to suggest that more needed to be done, the concern was that you would lose the confidence of the public such that you just allowed the virus to run rampant?
Mr Humza Yousaf: No. You see, it’s not a case of simply losing the dressing room, or the public won’t stand for it. What that in effect means, of course, is that we don’t – we will not have compliance, and that is the worst of both worlds. So you end up in a position where people aren’t complying, they just won’t stand for it – at this point we’d been living with the virus for over a year and people have been through numerous restrictions – so you get the worst of both worlds: they don’t comply and then that therefore means that you continue to get increased levels and numbers of cases.
I think that was particularly – it was more difficult, I think, to bring forward the NPIs, the non-pharmaceutical interventions, when we had a vaccination programme also well under way and a testing system that was well established as well.
But I go back to the central point in this exchange, that we were facing an incredibly difficult set of circumstances, with not just the fan zone but, generally speaking, having lived for over a year with this virus people’s patience, understandably so, with restrictions wearing relatively thin.
Lead 2A: But at this stage was it not possible to try to mitigate the possibility of losing the dressing room by using strategies you suggested were used early in the pandemic: explaining things to people, explaining what the data was, explaining why it was in their interests to adhere to the restrictions. It seems here that there is a discussion about those risks, a discussion about that data, but you simply give up and rely on instinct?
Mr Humza Yousaf: No, again, I don’t agree that we gave up. There was first and foremost at this point restrictions in place. It’d be wrong for anybody to suggest there wasn’t any level of restriction in place. But what we also did was we took additional measures, particularly in relation to the fan zone but also of course, you’ll be aware, in addition to the fan zone there was some matches being played at Hampden, with a reduced capacity, so we made sure that significant mitigations were put in place in relation to testing availability, test kits being sent out to people, mitigations around hand hygiene, one-way systems, and so on and so forth. We took a number of mitigations. So this wasn’t a case of, “Look, we’re not going to take any action, we just have to live with what will happen”.
And ultimately of course the data demonstrates that, when we look at the Public Health Scotland Covid-19 statistical report of 28 June 2021, that between 11 and 28 June, 1,991 people in Scotland with a Covid diagnosis were identified as having attended one or more Euro 2020 events during the infectious period, but they were tagged in terms of what events they attended, and nearly two-thirds of the cases, 1,294 people, reported travelling to London for a Euro-related event and game. When we look at those who were tagged for the fan zone, out of the 1,991, 55 cases came as part of the fan zone or travelled to the fan zone, and the Scotland match against Croatia, 38 tags, and the Scotland match versus the Czech Republic, 37 tags.
So really a small proportion of those positive cases went to the fan zone or indeed attended a game at Hampden, and that, to me, says that the mitigations we put in place were relatively effective.
Lead 2A: Could I then follow this attempt to try to understand the decision-making process over this period into the later variant emergence which you mentioned yourself, the Omicron variant, so if we could go then to – I think it’s the same document, 4792, at page 45.
So at this stage late November Omicron has started to become the next issue that we have to deal with. I think that you say in your statement that there were some gaps in data around Omicron which caused some issues around that time. Could you tell us, do you recall what the gaps in data were around this period that caused difficulty in trying to come up with a strategy?
Mr Humza Yousaf: In terms of Omicron?
Lead 2A: Yes. I could read the passage out if it’s more helpful, it might refresh your memory:
“I do recall times when there were gaps in the data, scientific information or advice, particularly in relation to a new variant. For example, when information emerged about a new Covid-19 variant, Omicron, in late November 2021, advisors were understandably unsure about the extent of immune-escape or severity of Omicron. The scientific research was still in the early stages in South Africa (where Omicron was first identified) and while it was quickly established that it had a high transmission rate, other factors such as how it would impact those who had the booster vaccine were unknown. The lack of scientific understanding was communicated to Cabinet at the time, both from the CMO and in papers provided to Cabinet and taken into account when making decisions.”
So I think you’re trying to say there that, simply as a result of the fact it was a new variant. There was inevitably a lack of data about – one of the particular factors about it was whether there was going to be immune escape, such that the vaccines might not work as effectively against this new variant. Is that broadly correct?
Mr Humza Yousaf: Yes, correct.
Lead 2A: Yes. So at this stage one might think that one required to reimpose or reconsider a precautionary approach, because of the possibility that the great protector, the game-changer, as you described it, the vaccine, may no longer be the protection which it might at once have been; is that right?
Mr Humza Yousaf: That is one conclusion, yes.
Lead 2A: Is that a fair assessment of the approach which ought to have been taken?
Mr Humza Yousaf: Well, again, it depends when the decision was taken because every day we were learning more and more about the variant, its characteristics, possible immune escape, et cetera, et cetera.
Lead 2A: So if I could take you to an exchange, please – I’d taken you to at page 45, sorry, before asking you that question – at 13 December at 19.56.
Mr Humza Yousaf: Yeah.
Lead 2A: Discussion here in this context where you again discussing, as we see often, with Professor Leitch:
“Keep me updated on what comes out FM call. I will be really disappointed if we end up with just window dressing.”
To which, at 20.13, Professor Leitch described:
“It’s window dressing. We edged her to limiting households everywhere we could but it’s marginal. Nothing significant.”
You say:
“Just don’t get it. Take it it’s coming down to finance? So big events can continue, people can meet in as big as numbers as they like in pubs and restaurants? Madness.”
You say:
“Working from home?”
Professor Leitch says:
“All about money.”
Professor Leitch says:
“Yep.
“Yes. In regs.”
You say:
“Frustrating. Thought Kate [which I assume is a reference to Ms Forbes, is that right?] might have pulled something out of the bag. Was she on the call? I have might try and call her tonight will have limited effect i suspect but be helpful to understand the analysis she has done of costs involved.”
So is the position here that you are suggesting that greater steps require to be taken to deal with this situation but for, amongst other reasons, financial reasons those steps are not being taken, which is causing you a great deal of frustration?
Mr Humza Yousaf: That is a fair summary, so – and I remember this period very, very well, and I go back to the comments I made a moment ago in response to a different question that you asked. As Cabinet Secretary for Health I was always going to be the person round the Cabinet table that was pushing the government to go further, to go faster, to go harder, given that I was the one that was dealing with health on a day-to-day basis and seeing the impacts on the health service.
I think the other important point of context are in funding and finance here, which is exceptionally important, is of course by this point I believe the UK Government had already significantly reduced, if not entirely withdrawn, its funding in relation to business support. So therefore if we were going to try to find money for business support, if we were going to introduce restrictions on hospitality, then we would have to find that compensation within the Scottish Government’s budget, which was already under extreme pressure given that we were still – we had been fighting the pandemic that whole year.
So there is no doubt that I had thought at this period in time that we should have gone further, and I’m not sure if it’s quite at this time or slightly later in the month that we end up with an options paper around various different options that Cabinet considers. Now it’s no surprise that I am the one who opts for what I think was option C at the time, which was the one with the most restriction in place, including further restriction on hospitality and leisure. But we had to consider not just all four harms, which was our guiding light, but we had to consider whether or not we would be able to compensate businesses or not if we added further restriction.
So, yes, I think your summary is fair, I wanted to go further, but ultimately that had to be a collective decision that Cabinet would have had in considering all of the factors, including finance of course, as well as ultimately the priority, which is public health.
Lead 2A: First Minister, over this period, as we describe, there was considerable uncertainty as to what might happen. There was a threat from a new variant, cases were rising; there was a need to take a precautionary approach, was there not?
Mr Humza Yousaf: Yes, and that’s why further limitations were brought in and you can see that from the exchange with Jason, limited households – limiting households everywhere, you know, but it’s marginal. I would have wanted us to go further.
I think by this point we also had a better understanding about immune escape and that the vaccine was still very effective against – a booster dose of that vaccine was incredibly effective against Omicron variant. So, again, as well as NPIs, the non-pharmaceutical interventions, we were also looking at how we would rapidly increase the level of vaccination as well.
Lead 2A: There are some further exchanges in this regard expressing your frustration with the position the First Minister seemed to take. This period – the correspondence goes on in this vein over this period.
If I could take you down a bit further, please, to 5 January 2022 at 1.19 – sorry 1.18, page 48?
1.18, yes:
“It is grim [you say] but FM is right, public aren’t with us. They now hear what they want to hear ‘less severe’ ‘one in ICU with Omicron’.”
Professor Leitch says:
“Yep. I agree. And I kind of agree with them. I can’t find any evidence of ICU increases or deaths globally. So…it’s a health service problem now.”
You say:
“So means we have to deal with the consequences, ie somehow ensure our NHS doesn’t completely collapse. I’m not entirely sure we can deliver on that but I’m going to have to do everything in my power to make sure it doesn’t.”
Then at 1.22 you say:
“We have asked a lot of the public. But we’ve lost the dressing room on this one. After 21 months ‘save the NHS’ isn’t enough to stop them living their lives as close to normal as they can get.”
Does this exchange indicate, First Minister, that by this stage, in light of record numbers of cases and the NHS in collapse, you had lost the faith of the Scottish people such that the virus was able to run rampant without control?
Mr Humza Yousaf: No, that is not the interpretation. The interpretation is that we have, as we say in the exchange that’s highlighted, we have asked a lot of the public. That was true. Never, never in my life could I have imagined that I would ever be in a position in politics that would require me, necessitate me to now have to effectively keep people under lockdown. Not in effect; we did keep people in lockdown. This was the biggest decisions I think a government has ever made, certainly in recent times, and we didn’t just ask the public to do that once, we asked them to live by these restrictions on multiple occasions.
So there’s not a blame here, neither on the public but nor do I think it is correct to attribute blame to the government for the fact that the public had had enough of restrictive measures. But when you have a vaccination programme in place that was effective, when you have a testing system that’s in place that has shown to be effective, then – and when we are seeing a new variant but that new variant, thankfully, because of the vaccine, largely down to the vaccine, is not causing as much severe illness perhaps as if we didn’t have the vaccine, and people are hearing that there’s one person in ICU for example with Omicron, then it would have been if not virtually impossible, extremely difficult to impose a level of restriction akin to lockdown that would have undoubtedly had the impact of reducing case numbers, but I don’t think we would have had compliance with – from the public.
Lead 2A: I’ve two very brief further questions.
I understand that during the course of your evidence, I think you alluded to this earlier in connection with the WhatsApp situation, that you have announced an externally led review into the Scottish Government’s use of WhatsApp and non-corporate technology; is that correct?
Mr Humza Yousaf: Yes.
Lead 2A: That review will not have access to WhatsApps which have been destroyed by ministers and senior officials, will it?
Mr Humza Yousaf: No.
Mr Dawson: I have no further questions, my Lady.
There are some pre-Rule 10 questions from Ms Mitchell.
Lady Hallett: Yes, there are.
Ms Mitchell.
Questions From Ms Mitchell KC
Ms Mitchell: First Minister, I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.
I wish to ask you some questions particularly in relation to Covid symptoms.
I would like a document brought up, please. It is INQ000273956, paragraph 341.
I’ll start by explaining that paragraph says:
“In 2020, the Cabinet Secretary for Health and Sport would have received advice from scientific and clinical experts in relation to the risk of transmission within care homes of patients being discharged to care homes from hospital care. The Scottish Government are aware that older people were more at risk of serious illness from the virus, but in the initial stages of the pandemic there was an evolving understanding of asymptomatic transmission. As the knowledge and understanding grew, our testing regime was changed accordingly in response.”
Then you explain that this is why there was a change in routinely testing from those – from hospital to care homes who were asymptomatic to testing all people moving from hospital to care homes on 21 April 2020.
We see from our discussion of Cabinet meetings that the issue of care homes was frequently discussed, and I would like to ask you, as a member, I appreciate, of the Cabinet but not as the member who had specific responsibility for this, but nevertheless a member of the Cabinet who was making these decisions: what was your understanding, and when did you become aware of the possibility of asymptomatic transfer of Covid-19?
Now, before you respond to that, I use the word “possibility” with care. Not when did it become clear that that was an issue, but can you recall when the live issue of asymptomatic transfer was a possibility?
Mr Humza Yousaf: Thank you.
Can I reiterate, now that I’m speaking directly to you as the representative of Scottish Covid Bereaved, can I reiterate that apology that I made at the beginning for the way that we’ve handled the WhatsApp issue. It was not good enough and it has caused, I know, serious grief and re-trauma for those that you represent, and there’s no excuses from me, that should have been handled better and in the future will be handled better.
In relation to the substance of your question, I couldn’t give you an absolute date of when the possibility became clear. As you can imagine, many of us in government, regardless of whether they were health secretary at the time or not, have reflected on this issue and this question of asymptomatic testing for those who were being discharged from hospitals into care homes, and there will be a long list of potential lessons that the government and governments could have learnt.
I think the issue around possible asymptomatic transmission of the virus was known as a possibility early on, through various international journals, through various academic articles, and there will be a number of things that we could have done better.
It is in my view, as the current First Minister, that we should have been testing those who were leaving hospitals, going into care homes who were asymptomatic sooner than we actually did.
Ms Mitchell KC: Can I press you: when you say early, when are we talking about, January, February?
Mr Humza Yousaf: Forgive me, I couldn’t recall exactly when that was –
Ms Mitchell KC: So I suppose implicit in your response was that you were aware of the possibility of asymptomatic transfer at the time it was decided to move people from hospitals into care homes?
Mr Humza Yousaf: Yes. Yes, I mean, I would certainly say that pre-21 April 2020 I think it would be fair to say that there was a possibility – and that was the word you very specifically used – because it wasn’t clear, may not have been clear well in advance of that date, but it was certainly a possibility that asymptomatic transmission could have happened and therefore, as I say, if there’s an area of reflection that I think about very often, it is whether we should have – and it is my view actually we should have – perhaps more routinely tested those moving from hospitals to care homes who were asymptomatic sooner.
Ms Mitchell KC: I understand that you’ve reflected upon that and that’s your view now. Can you explain to the Inquiry what your thinking – what the impact of that was at the time, what your thinking was at the time when you decided: well, there might be a possibility of asymptomatic transfer but I’m still going to be a collective part of a decision to transfer from the hospital environment into the care home environment?
Mr Humza Yousaf: Yes, so I can try to talk you through that to the best of my ability. So, first of all, it is the issue around a possibility. And I should say at this point I also had a family member in a care home, my wife’s gran, who’s in a care home to this day. And therefore we always try to understand the issues that were affecting care home relatives, in particular, and those who were in care homes, because for them it wasn’t the care home, it was their home.
In terms of the possibility, the various factors we had to consider were at this point, in early days of the pandemic, we were extremely concerned about the overwhelming of the NHS and whether or not we would have the sufficient bed capacity or not, particularly in advance of any vaccine.
The other thing that we had to consider was the testing infrastructure. Now, the testing infrastructure built up over a period of months and years, even – but certainly over a period of months we were able to ramp it up, but we did have limitations in terms of the testing infrastructure and also the reliability of tests, rapid tests, which became – again, evolved over time to become far more accurate than they were.
But when it became clearer, because we talked about a possibility of asymptomatic transmission, when it became clearer of course we moved to a position of routinely testing.
Ms Mitchell KC: But prior to that time it appears that, balancing things out, that was a risk you had to take?
Mr Humza Yousaf: We were always trying to balance a number of factors and risks, overwhelming of the NHS, nosocomial infection, impact on care homes, and so on and so forth, and –
Ms Mitchell KC: May I move on to my next question, and that is in relation to the changing picture of Covid symptoms over the piece.
Now, we’ve heard evidence even as early as February and certainly in March of 2020, we heard evidence from Dr Donald Macaskill saying that they were aware at Scottish Care that symptoms demonstrated as being Covid symptoms were not manifesting in the same way as in a population which was particularly old and with multiple comorbidities.
We have then at a later stage, June 2020, Public Health Scotland highlighting the fact that symptoms in the elderly are different, and also Public Health Scotland, in June 2021, indicating that older compromised residents may present with atypical or non-specific symptoms, and list them.
My Lady, for reference, that is INQ000241655.
After you became Cabinet Secretary for Health and Social Care in May 2021, you met the group now known as the Scottish Covid Bereaved on 17 August 2021, and during the course of that conversation they raised with you the issue of Covid-19 symptoms being restricted to temperature, persistent cough and a loss of sense of taste or smell, and you recall that you confirmed that the UK Health Security Agency was responsible for the symptoms and would not at that stage change it.
You say that in respect of the steps taken to revise the symptoms, you recall enquiring of the CMO as to the potential scope for expanding the line of symptoms.
In that regard, this would be Gregor Smith that you would have been asking, do you recall if you asked him in person or in writing?
Mr Humza Yousaf: Forgive me, it certainly would have been in person, I can’t remember whether or not there was also a written exchange, be that over informal communication or formally, but the Scottish Covid Bereaved of course raised it, as you rightly say, and that’s minuted. It was also raised by other groups as well that there may be additional symptoms, and there was of course primary core symptoms and then what was known sometimes as secondary symptoms. But ultimately these were clinical decisions. There is no way that I, nor the previous DFM, who met Scottish Covid Bereaved –
Ms Mitchell KC: No, I’m sorry to interrupt you, First Minister, I’m just wanting to see whether or not you asked him, and presumably he followed that up, because in the paragraph you give, we don’t hear what the response was. Can you remember what the response –
Mr Humza Yousaf: Yes, he would have had a discussion with the other CMOs of the United Kingdom and for – the clinical expertise would have been to maintain those core symptoms as they were. Now, they would have taken a whole raft and range of clinical advice and used their clinical expertise to come to that decision, and I go back to saying that ultimately it was always going to be a clinical decision.
Ms Mitchell KC: Finally, why when health is a devolved matter did it require the UK Health Security Agency to identify the symptom profile, as fed into it by the four CMOs? Why couldn’t Scotland go its own way in that regard?
Mr Humza Yousaf: Yeah. I think in essence if we had – if the CMO and the clinical advice had come back to say very strongly that “We believe that there should be XYZ symptom added to the core symptoms”, that may have been a possibility. I think we were very, very keen in this sense to try to keep UK alignment, to try to make the issue more simply understood in relation to the core symptoms right across the UK. But this again, I go back to the point, there’s always going to be an issue of clinical advice as opposed to ministerial decision or direction.
Ms Mitchell: My Lady, those are my questions.
Lady Hallett: Thank you, Ms Mitchell.
Thank you very much, First Minister, I’m very grateful to you.
Sorry about the constant coughing, I’m afraid it’s been a feature of this Inquiry, certainly in Scotland.
I will see everybody on Monday at 10 am.
The Witness: Thank you my Lady.
(The witness withdrew)
(4.33 pm)
(The hearing adjourned until 10 am on Monday, 29 January 2024)