Transcript of Module 2B Public Hearing on 29 February 2024.

(9.59 am)

Mr Poole: I call Professor Daniel Wincott, please.

1. Professor Daniel Wincott

PROFESSOR DANIEL WINCOTT (affirmed).

Questions From Lead Counsel to the Inquiry for Module 2B

Mr Poole: Could you start by giving us your full name, please.

Professor Daniel Wincott: My name’s Daniel Edward Wincott.

Lead 2B: Professor Wincott, thank you for attending today and assisting the Inquiry. Can I ask you to, when you’re giving your evidence, keep your voice up so that we can hear you but also so that your evidence can be recorded, and if I ask you anything that isn’t clear, ask me to rephrase the question. Professor, you are currently a professor of law and society in the School of Law and Politics at Cardiff University; is that right?

Professor Daniel Wincott: I am, yes.

Lead 2B: We also see from your report, which we’ll come on to in a moment, that you hold undergraduate degrees and masters degrees from the University of Manchester and also a PhD from the London School of Economics; is that right?

Professor Daniel Wincott: Yes.

Lead 2B: You are also a fellow of the Learned Society of Wales and a fellow of the Academy of Social Sciences, and I understand you have published extensively on a range of subjects, including on the law and politics of territorial governance in the UK and comparatively as well as on public attitudes to devolution; is that right?

Professor Daniel Wincott: It is.

Lead 2B: You’ve published or contributed also to a range of reports, articles, papers and other public domain material that is relevant to the response of the Welsh Government to the Covid-19 pandemic, I think mostly focusing on the implications of the response to Covid for devolution and also the UK’s territorial constitution?

Professor Daniel Wincott: I have, yeah.

Lead 2B: You’ve prepared at the Inquiry’s request a report that we can see at INQ000411927, and that, as we can see there, is entitled “Welsh Government core political and administration decision-making in relation to the Covid-19 pandemic”.

At the bottom of that first page is what is described as an author statement, where you refer to your report, to your duty as an expert to provide independent evidence, and to the fact that the opinions expressed in the report represent your true and complete professional opinion on the matters to which they refer; is that right?

Professor Daniel Wincott: It is.

Lead 2B: We don’t – we can see there also the date. It’s dated 16 February this year. So, Professor, as the title of your report suggests, you’ve been engaged by the Inquiry to help explain the Welsh Government’s core political and administrative decision-making during the pandemic. Before we look at that in detail, I should say we’re going to adduce your report in full in its entirety. And we can see it’s fairly lengthy, it contains an awful lot of very helpful information and detail; we’re not going to, in the time available this morning, be able to cover all of the topics in your report but what we will try to do is cover the central themes. Before we do that, I just want to be clear about the mechanics of how your report was put together. Am I right that you were initially instructed last year to prepare a report and that was on the basis of your own understanding of the matters identified in your instructions and materials that you could find in the public domain; is that right?

Professor Daniel Wincott: That’s correct, yes.

Lead 2B: And then more recently, as the Inquiry has obtained its own evidence, you have been asked to look at some but not all the evidence that the Inquiry has obtained relating to the issues in your instructions; is that right?

Professor Daniel Wincott: That is right, yes.

Lead 2B: So, for example, the Inquiry has provided you with witness statements that it’s received from the Welsh Government’s various directorates and key decision-makers, such as the First Minister?

Professor Daniel Wincott: That’s right, yeah.

Lead 2B: Now, you set out at page 84 of your report, we don’t need to go to it, but there is a list of the materials that were provided to you by the Inquiry which you’ve relied on, and then at page 86 you set out the other references upon which you have relied. So are those the principal materials you used to produce your report?

Professor Daniel Wincott: They are.

Lead 2B: So, Professor, I’d like to start with a few questions about devolution in Wales, so as to provide some context and set the framework for the core decisions that the Welsh Government took during the pandemic. Once we’ve done that, we’ll look at the arrangements and structures that were in place in January 2020, at the start of the pandemic, and then – before we turn to some of the key events and look at how the Westminster and Cardiff Bay governments dealt with each other during the pandemic.

So starting with devolution, at paragraph 54 of your report, we don’t need to have it displayed on the screen, you describe the model of devolution in Wales as passing through a complicated and politically contested series of reforms, and you specifically reference the Government of Wales Acts 1998 and 2006 and the Wales Acts of 2014 and 2017.

Now, in summary, is it right to say the Government of Wales Act 1998, that established a devolved legislature in Wales, the National Assembly for Wales, which at that time had no primary law-making powers?

Professor Daniel Wincott: That is correct, yes.

Lead 2B: Then the Government of Wales Act 2006 gave the National Assembly power to pass its own primary legislation under a system by which limited competence was confirmed on a – I think you describe it as a piecemeal basis, and that’s often referred to as the “conferred powers model”; is that right?

Professor Daniel Wincott: Yes, that’s the first stage of the conferred powers model.

Lead 2B: Next chronologically we have the Wales Act 2014, and I think I’m right in saying that that extended the National Assembly’s legislative competence in relation to certain tax matters, and then the 2017 Wales Act and that changed the system from a conferred powers model to a reserved powers model, and that’s consistent with the models that are adopted in Scotland and Northern Ireland; have I got that broadly correct?

Professor Daniel Wincott: That’s broadly right. I would add one further change, which was the change under the Government of Wales Act 2006 from the initial model, which moved powers piecemeal to Wales in a series of fields, and then what were called full legislative powers following a referendum in Wales where the full range of conferred powers were given at the same time. So it’s been a complicated and constant process of change.

Lead 2B: Well, as you say, I think you describe it – complicated and politically contested series of reforms?

Professor Daniel Wincott: Yes.

Lead 2B: Could you just describe in a few sentences for us how a reserved powers model operates.

Professor Daniel Wincott: So in principle it means that the devolved parliament or legislature is able to pass legislation on any matter at all except for those matters that are reserved to the Westminster Parliament.

It’s correct to say, I think, that that model is – in Wales, has made Wales more similar to the position in Scotland in particular, but the list of reservations in Wales remains much more extensive than the list of reservations in relation to Scotland, and that means that the system in Wales is more constrained in the range of things it can do than the system in Scotland.

Lead 2B: Thank you, Professor. In a moment I’m going to take you to a table that sets out some of those conferred and reserved powers and we’ll have a look at that then.

Just by way of another contextual topic, which is that of the mechanics and the structures that give effect to devolution, if I can I want to group these into three areas: the first, legislation, which, as we’ve already touched on, is the source of devolved competence; second, the financial arrangements between the various nations; and then, third, the arrangements made for intergovernmental discussion and collaboration. And if I may, I’ll just take those in that order.

So, legislative competence first. We’ve already looked at how that’s evolved in Wales, starting with the conferred powers model before changing to a reserved powers model. Is it right to say, at least in principle, that Westminster retains the right to legislate on devolved matters but normally will not do so without the consent of the devolved legislature?

Professor Daniel Wincott: Yes, that’s right.

Lead 2B: And that informal constitutional convention, that’s what we’ve heard – known as the Sewel Convention?

Professor Daniel Wincott: That’s right, yeah.

Lead 2B: So in respect of Wales, this means that the Senedd must give its formal approval, often in the form of a legislative consent motion, for the Westminster Parliament to legislate in areas under devolved competence?

Professor Daniel Wincott: That’s correct, yeah.

Lead 2B: Mr Gove in his evidence to the Inquiry in Module 2 said that although he is and remains a strong supporter of devolution both across the UK and in England, he also believes that the backstop powers of the UK Government need to be strengthened, and he has said in his evidence that the pandemic revealed the weakness of a devolution settlement that failed to reserve key powers to the UK Government to act in an emergency.

Do you have any comment on those statements?

Professor Daniel Wincott: I certainly think the pandemic revealed some weakness and ambiguities in the devolution arrangements. It’s not clear to me that those weaknesses relate to the formal ability of the Westminster Parliament to pass legislation in devolved areas. You know, there was, even during the pandemic, legislation passed at Westminster for which consent was sought and – but that consent wasn’t given, and nonetheless the Westminster Parliament passed it, like the UK Internal Market Act. So the “not normally” provision in the Sewel Convention, you know, is invoked at the discretion of the Westminster Parliament.

Lead 2B: Changing tack slightly, in broad terms can you explain the role of the UK Government in policymaking in Wales under the devolution settlement? So does the devolution settlement mean that the UK Government and the Welsh Government really share overall responsibility for policy decisions that impact Wales, each within its own area of responsibility?

Professor Daniel Wincott: So I would say, yeah, each has its own area of responsibility, and normally they deal with those areas as two governments which govern Wales.

Lead 2B: So as we’ve touched on already, the boundaries of Welsh competence, and it’s section 108A of the Government of Wales Act 2006, that sets out the extent of the Senedd’s legislative competence, and I don’t propose to go through that in detail but, as I said I would, I’ll show you a table.

This is a table that was prepared by Professor Henderson, who gave evidence in Module 2. We see it at INQ000269372, and it’s page 12 of the report. This is part of Professor Henderson’s report that was entitled “Devolution and the UK’s Response to Covid …”, and we see there in the table it identifies devolved policy areas.

Now, first up, we can see they are not all common, there are areas where one government has a power and the others do not, for example. Now, we obviously are only concerned with Wales in the third column.

We don’t need to go all the way down the list, perhaps the most important for our purposes is the first, you see there “Health and social services”. So this is a devolved matter in all three devolved administrations. And we can also see in this table other areas such as education, local government, transport, and housing, they’re also devolved areas in Wales.

If we can turn over the page to page 13, please, here we see the other side of the coin, namely powers that have been reserved to Westminster in relation to each of the three devolved administrations, and again we can see that the position is not uniform across the three nations. We can see the first three, again looking obviously specifically at Wales: constitution foreign affairs, and defence.

So none of that fits as precisely into our experience of the pandemic as health, as we just saw over the page, but certainly one can see in each of those the question of borders, certainly, which is something we will come back to look at.

Just returning then back to your report, and we don’t need to have the paragraph up, it’s paragraph 44, you refer to “jagged edges”, that is to say situations where policy objectives or areas of responsibility overlap or span between devolved and non-devolved areas.

Where situations transcend policy areas, so an obvious example being the pandemic, does this mean that the policy outcomes in Wales can to some extent be impacted by decisions of both the Welsh Government but also the UK Government?

Professor Daniel Wincott: Absolutely. Yeah, I think we’re going to come on to one of the most significant, which relates to public spending, but …

Lead 2B: We’ll certainly come to funding and public spending in a moment.

Does that create, in your view, uncertainty about the extent to which Welsh ministers are responsible for the outcomes of decisions in their names?

Professor Daniel Wincott: I mean, I think Welsh ministers are still responsible for the – for outcomes of decisions in their name. I mean, for any government, there’s a sort of limited bandwidth, limited range of things that any government can do. So governments have to make choices and some of the choices in the context of the pandemic were particularly stark. I think that the – the Welsh Government is particularly constrained by the nature of the devolution settlement and those – those jagged edges and its relationship with the UK Government. So Welsh Government ministers I think are still responsible for their decisions, but they exercise that responsibility within, I think, particularly tight and, in some respects, uncertain constraints.

Lead 2B: Does the existence of what we’re calling these jagged edges also mean it’s perhaps easier for decision-makers in the Welsh Government to attribute blame for bad policy decisions to the UK Government and also vice versa? I think some have referred to this as creating an accountability deficit. Have you experience of this?

Professor Daniel Wincott: I mean, I think there can be confusion over accountability. I think there is a – often a tendency to kind of use, other parts of the UK and in Wales, what’s happening in England as a yardstick, so to note when – when there’s a sense that Wales is doing better than England, and I’m not sure that’s always – with respect to a particular yardstick – I think somewhere in the report, certainly in some of the materials I saw, there was reference to Wales doing more testing than England at a relatively early stage in – I think in some of the core Covid group minutes, and I’m not sure that’s a helpful yardstick, and there are certainly blame games played. So, you know, that’s a feature of the system. And again I think we may come on to this, the institutions for working together are much less well developed than would be optimal in a system like the UK system.

Although I would say, just very quickly, there are lots of examples of governments working together effectively, going back through the history of devolution on, for example, city deals, where the UK Government and the Welsh Government have kind of collaborated in – on specific matters.

Lead 2B: We’ll certainly come on to intergovernmental relations and the JMC structure and things like that in a moment. But just sticking with this question of the consequences of granting devolved powers, is one of, would you say, the automatic consequences of granting devolved powers and decision-making authority to the Senedd policy variation? And if that is the case, what, in your view, are the main benefits and disadvantages of policy variation?

Professor Daniel Wincott: I think, you know, devolution is a – is a machine that creates policy differences or divergences where, you know, governments in different parts of the UK take different approaches. You know, there’s a certain amount of concern about different paths being taken for the sake of difference, but the basic principle, and I think this is reasonably well established and, you know, has been recognised, for example, by the Supreme Court, is that the devolved parliaments and legislatures are authentic democratic bodies and that they authorise governments to pursue their own policy agendas.

So, I mean, I think it’s a legitimate part of the devolution system. Potentially it can have benefits of, you know, policy experimentation, so, you know, something can be tried in one place and then adopted in other places. I mean, you know, an example that isn’t related to Covid that’s often cited here is the use of plastic bags in supermarkets which, you know, is now no longer routinely done in the way it used to be done.

Yeah, I think that’s … you know, so I think it’s … it is a system that generates divergence and, you know, that, in a sense, is its – part of its rationale.

Lead 2B: As you say, it’s an automatic consequence, isn’t it?

Professor Daniel Wincott: Yeah.

Lead 2B: If we turn next to the second mechanism and structure that gives effect to devolution, so these are the – what I mentioned earlier, the financial arrangements between the UK Government and the Welsh Government. In broad terms, matters of national finance are reserved, but that obviously poses the question: how is Wales funded? And at least one of the answers to that is to be found in what is known as the Barnett formula. Now, we mustn’t let this become a devolution or an economics seminar but can you please explain in a few sentences what the Barnett formula is and how it works.

Professor Daniel Wincott: Right, so, I mean, the Barnett formula is sort of used in, as a phrase, it’s used in a number of different ways. Strictly it’s to do with the – how levels of the block grant given by the – HMT, the Treasury, to the devolved governments, how changes to that are calculated. Broadly speaking, the block grant system is the crucial element and essentially that’s under Treasury control and gives block grants to the devolved governments, including the Welsh Government, based on levels of spending for England on matters that are devolved to Wales. So the Treasury decides what’s devolved, works out how much has been spent in England, and then gives a population share to – to Wales.

That process is really, I think, about the Treasury maintaining control of the big macroeconomic features of the UK economy. It tends to happen sort of retrospectively, so that the level of the block grant depends on what’s actually spent in England on devolved matters.

It’s also important to note that, and this is quite unusual in international comparison, there are no constraints placed on how the devolved governments can spend the block grant. So if the UK Government spends more on health or on education for England, devolved governments can take that consequential and spend it on whatever their priority is in their – in their area.

But it does mean that the scope for what you might call demand-led spending in Wales is not present in the same way that it would be present for – for the UK Government in relation to England. So they couldn’t suddenly find another big demand for spending and simply borrow or otherwise find the money to spend on it. They’re strictly limited to the grant that they have.

Lead 2B: And does that point you’ve just made there, does that create an extra complexity, then, to the whole question of what powers are devolved?

Professor Daniel Wincott: I think it does. You know, so thinking about this in preparation for this session, I think a characteristic of the Welsh Government is a certain sort of conservatism, a reluctance to take on liabilities that may be open-ended. So, for example, in an unrelated area, the Welsh Government hasn’t had the rail system devolved to it. There was a moment when that might have happened and the Welsh Government didn’t want it, I think because it was concerned about the liabilities of maintaining an old railway – an old railway stock. There are a number of other examples of that kind that might relate to aspirational – “aspirational” legislation that I’ve described in the report where if legislation grants rights which have financial consequences, then there’s a kind of open-ended commitment created there, and I think the Welsh Government has often been reluctant to make those kinds of commitments, simply – you know, and that’s related to the fact that it doesn’t have the capacity to necessarily meet open-ended liabilities due to the nature of the financial system.

I’d also say that, in relation to the block grant system or the so-called Barnett formula, you know, I think there’s a fairly general consensus that Wales has done, historically, relatively less well compared to levels of need in Wales than, say, Scotland has done from the block grant system, and again I think that’s been reflected in a relatively recently innovation of the adding of a so-called “needs-based” element to the block grant calculation for Wales which is unique to Wales. I think some politicians in Northern Ireland are quite keen on having it implemented there as well.

Lead 2B: That needs-based element, that was something that was introduced in 2018/2019. Why did Wales have a higher need than the other nations of the UK?

Professor Daniel Wincott: I think it’s partly to do with sociodemographics, an older population, it’s the nature of the economic base in Wales, you know, there are very few higher rate taxpayers in Wales, for example, levels of poverty are relatively high in Wales and so on. So it’s those kinds of needs.

Lead 2B: Professor, we might come back to briefly touch on funding again when we talk about the firebreak, perhaps after the break.

I want to now move to intergovernmental arrangements, and the third of the mechanisms and structures that I’ve referred to a moment ago as giving effect to devolution.

Starting with the UK Government, all of the devolved administrations have their own territorial secretary of state, and Simon Hart was the Secretary of State for Wales during the pandemic.

What would you describe as being the primary role of the Secretary of State for Wales?

Professor Daniel Wincott: I think formally speaking the Secretary of State for Wales is supposed to represent Wales in the UK Government and represent the UK Government in Wales.

Would you like me to expand on that a little bit? I mean, I think there is a sense that this is a role that’s perhaps somewhat left over from the pre-devolution arrangements. Again, in the report I quote Robert Hazell, who is a former civil servant and professor at Imperial College London, a report he wrote very early on after devolution where he imagined that, you know, the territorial secretaries of state would be consolidated into a single post or certainly the Scottish and Welsh ones would be, because it wasn’t clear to him, and it’s not entirely clear to me, you know, quite what that role is.

Lead 2B: Certainly during the pandemic, so September 2021, we know that a UK ministerial post of Minister for Intergovernmental Relations was created and that post was occupied by Michael Gove, but prior to that post, Mr Gove had already been playing a liaison role between the UK Government and the Welsh Government in his capacity as Chancellor of the Duchy of Lancaster.

Perhaps you alluded to this already, but how did Mr Gove’s role vis-à-vis the devolved administrations fit with the role of a territorial secretary of state?

Professor Daniel Wincott: I mean, I think there was some tension within the UK Government. I’ve certainly seen documents that have been released to me through the Inquiry that suggest there was some difference of view within the UK Government as between Mr Gove in that role and the territorial secretaries of state who I think felt somewhat sidelined by the liaison role that Michael Gove played with the First Ministers and Deputy First Minister in Northern Ireland.

Lead 2B: And from your own research and from the materials that you’ve seen, to what extent was the Secretary of State for Wales involved in pandemic decision-making in Wales?

Professor Daniel Wincott: So I don’t think the Secretary of State for Wales was heavily involved. I’ve seen some material that suggests that he relatively early on saw his role – saw himself as having a kind of supervisory role that he requested from the First Minister, that the First Minister organise meetings with businesses and maybe trade unions in Wales, and that this seems to have been viewed by the First Minister and the Welsh Government as a sort of a – an issue that needed to be managed and a diversion of attention from things that they were already doing. I mean, there’s quite a lot of material on the role of the Shadow Social Partnership Council, which is a – had already been set up in Wales, and was kind of ramped up through the pandemic, where Welsh Government ministers and officials met with businesses and unions, but also civil society organisations and a range of other actors on a regular basis. So that kind of activity was happening, and happening anyway, and I think the First Minister kind of thought that … it certainly didn’t seem to be a functionally productive relationship.

Lead 2B: In terms of the architecture that was in place prior to the pandemic for the governments of the four nations to come together, as we mentioned earlier, there was the Joint Ministerial Committee, the JMC, which was established in 2001 by a memorandum of understanding agreed by all four nations. Is it right to say that JMC was intended as a forum for dispute management, where the four nations of the UK could come together and resolve any disputes?

Professor Daniel Wincott: Yeah, it was certainly intended to manage the relationship between the – between the governments. I think its kind of formal dispute resolution role developed, sort of emerged later. But I would also say that I’m not convinced it ever functioned effectively as a dispute resolution forum.

Lead 2B: I think you say in your report, you refer to the JMC as offering a “limited and light touch form of [intergovernmental relations]”, and then you say you see it as part of the “devolve and forget” mindset. Can you briefly explain what you mean by this.

Professor Daniel Wincott: So, I mean, I think there’s a general consensus amongst sort of specialists who study these things that the JMC system was relatively underdeveloped and weak by comparative standards. The JMC for Europe was the formation that met most regularly and worked most effectively, and “devolve and forget” is a sort of aphorism that is part of kind of Whitehall terminology that simply suggests that matters were devolved to Wales and Scotland and Northern Ireland and then not really followed up on in Whitehall and that the standard kind of operating practices for governing England, which, you know, in some ways understandably – it’s by far the largest part of the United Kingdom – just continued within Whitehall so that it was as if nothing very much had changed in Whitehall by dint of devolution.

Lead 2B: Now, the Inquiry has heard evidence that there were no JMC plenary meetings during the pandemic, and Mr Johnson said in his witness statement to Module 2 of the Inquiry that he chose not to meet with the First Ministers of the devolved administrations because, in his view, this would have been optically wrong for fear that this would give a false impression that the UK was a federal state, and Mr Johnson says in his witness statement to Module 2:

“That is not, in my view, how devolution is meant to work.”

What’s your view about that statement?

Professor Daniel Wincott: I mean, I think that’s quite an extraordinary statement, really, not least because Mr Johnson himself contradicts it later on in his statement when he talks about the intergovernmental review and the intergovernmental review precisely set up as its apex forum a meeting of the Prime Minister with the First Ministers of the four devolved governments.

I think there’s a – you know, one can obviously read too much into individual words, but I think there’s a political significance in the change in that IGR review from talking about “devolved administrations”, which is again the standard language of Whitehall and of government in London, to “devolved governments”, which suggests more of a level of equality. You know, you might imagine if you were working for the UK Government and told you had to deal with the devolved administrations that you were dealing with a subordinate level or a level that you needed to supervise rather than, you know, a government that was dealing with core central government policy matters in Wales or Scotland or Northern Ireland.

So there’s an internal contradiction there, and I … so, I mean, I’m, you know – I wouldn’t speculate on what was going through Mr Johnson’s mind as he wrote the document, but that “optically wrong” seems to me to be a very strange way to talk about part of the management of a pandemic, really.

Sorry, I’d just note one other thing. You know, I think in his statement Mr Johnson talks about the meetings between Michael Gove as CDL, Chancellor of the Duchy of Lancaster, and later Minister for Intergovernmental Relations, and the First Ministers as being the equivalent of a JMC, but it’s quite striking then that in the annex to his report he lists those meetings as ad hoc and informal.

So, you know, if the JMC is the formal set of arrangements that should be used and that I think several senior civil servants recommended should be used, it seems odd and inconsistent then to treat the organisations – the meetings that he was saying were the equivalent of the JMC as ad hoc and informal meetings. Again, it seems like a fairly low grade way of managing what, at least in Wales, would be seen as kind of an important part of the management of the pandemic.

Lead 2B: So would it be right to say that your view would be that the CDL meetings or calls that happened over the pandemic, they were not a suitable substitute for the JMC plenary meetings?

Professor Daniel Wincott: Certainly in formal terms that’s correct, although the historical record of the formal meetings of the JMC don’t necessarily suggest that would have been an effective forum for dispensing or making decisions. You know, the – again, I don’t want to rush ahead, but the ministerial implementation groups, which had all the authority of UK Government Cabinet committees, you know, had devolved representation on – you know, and participation, and, you know, whilst I can see, and in his own witness statements Michael Gove has elaborated on the tensions and the lack of a perfect system and so on, I can see that that might be a cause for concern of other UK Government ministers in relation to bringing devolved governments into decision-making, into the heart of UK Government decision-making. You know, that was a mechanism that I think achieved that to a much greater extent either than the plenary JMC might have done unless it was constituted or put into action in a way that was – marked a difference with respect to previous operation of JMC planning(?) …

Lady Hallett: Professor, can I just interrupt for a second –

Professor Daniel Wincott: Sorry.

Lady Hallett: – and perhaps play devil’s advocate. Mr Johnson is obviously a unionist.

Professor Daniel Wincott: Yes.

Lady Hallett: And we don’t have four nations that are autonomous, entirely autonomous, and have just come together for mutual defence and all the rest of it. So surely his argument would be that the United Kingdom is – the United Kingdom Government is technically the government for the whole of the United Kingdom, and therefore you don’t treat the First Ministers – I’m not saying this is my argument, I’m just pushing forward a possible contrary argument – as you would treat the Prime Minister of country X that had come together with country B and all the rest of it.

Wouldn’t that be the unionist argument?

Professor Daniel Wincott: I’m – right. So I’m certainly not arguing that the – that the – that weren’t kind of difficult choices to be made between different ways of involving devolved governments in the management of the pandemic, that there would be cost to them and so on. The – aside from the ministerial implementation groups, though, it seems to me that the arrangements did mean that the devolved governments in general and the Welsh Government in particular were kind of informed about rather than involved in decision-making. I don’t think you would necessarily have to have kind of suggested that the four parts of the UK had come together for mutual defence to – only to – to make that kind of argument.

Sorry, I’m stumbling a bit here –

Lady Hallett: Don’t worry. We could –

Professor Daniel Wincott: I –

Lady Hallett: – in this way, perhaps: that whatever your argument that Mr Johnson would promote about unionism and not, as it were, treating the First Ministers in normal circumstances as equals because technically in law they’re not, whatever the arguments may be, but in a pandemic, your argument is, whatever you may normally think about how these arrangements work, in a pandemic, because you’ve all got to work together, then you’ve got to make sure that you’ve got proper arrangements; does that summarise it?

Professor Daniel Wincott: I certainly think that’s right that in a pandemic one might expect, you know, other kinds of rivalries or differences of view to be put aside, and that’s an argument that could be made to any of the principals involved here.

I suppose I’m struggling a bit with what is meant by a unionist argument, because someone can be a unionist, as the First Minister in Wales is a unionist, and still argue strongly for devolution and the involvement of devolved leaders in core decision-making processes in a way that would be – in fact, it might be quite a strong unionist argument to say that there should be more of an apparatus for managing the relationships between the governments which respects the responsibilities of each government.

You might think of it more as a kind of argument that might be made by people who – by those political parties that want to leave the UK, that they don’t want to be too entangled in arrangements for UK Government as a whole. So unionism can include what you might call a – I won’t try and call it that – a unitary view of the union and it can include a devolved view of the union, and I think Mr Johnson’s view is a very unitary view of the union, which emphasises strongly the … the role of the central UK Government. In that world, then one would want to see rather more care and attention and interest paid to matters in Wales, in this case, or Scotland and Northern Ireland in other cases, than it seems to me is evident from the documents I’ve seen.

I’ve seen, for example, in – and it’s not just political, I think it also influences the civil service. So if you look at the advice given by Sir Mark Sedwill and then by Helen MacNamara and Simon Case, you see initially discussion of how the devolved administrations, as the documents say, would be involved, and then in – at the latter end it’s about how the DAs would be managed, and it’s not clear to me that a workable system of devolution can be – that has a legislative parliament can be properly governed if the UK Government sees itself as managing the devolved administrations.

Lady Hallett: Thank you very much.

Long time taken on it, Professor, but now I know why. I shouldn’t – anyway, thank you, that’s very helpful, thank you.

Mr Poole: Yes, I think devolved waters run deep, Professor, and we will move away from devolution now and talk about Welsh Government decision-making structures, if we can.

If I could, please, have INQ000066086 on the screen.

This is the organisational chart of the Welsh Government as it entered the pandemic. So at the top we can see the First Minister. Underneath we then have the various Welsh ministers and deputy ministers. Then have, at the time, Shan Morgan, who was the permanent secretary who leads the Welsh civil service. And then beneath the permanent secretary you have the four director generals, so at that stage there were four groups: the Office of the First Minister and Brexit Group; Health and Social Services Group; Education and Public Services Group; and Economy, Skills and Natural Resources group.

So, first of all, we can see from that there are fewer groups than there are Welsh ministers, so a corollary of that is that the groups are not led, so to speak, politically by a designated department-type Cabinet minister. Do you see that as an advantage or a disadvantage when it comes to effective decision-making?

Professor Daniel Wincott: I mean, again I’d say, at the risk of sounding like an academic again, you know, there are – there will always be advantages and disadvantages. I mean, I suppose a disadvantage might be less capacity for a political minister to drive through a particular policy objective, you know, with the support of a committed group of civil servants. I suppose the advantages would be more in the area of joining up – you know, linking up across different domains of Welsh Government activity.

Lead 2B: Does the structure of the Welsh Government have any implications for the significance of special advisers to Welsh ministers?

Professor Daniel Wincott: Yes, I would – you know, I think ministers in all the governments in the UK rely very heavily on their special advisers, but I think they do play a particularly important role here, you know, given that you don’t have a kind of senior civil servant team around each, each minister.

Lead 2B: In terms of decision-making during the pandemic, you make a comment in your report, you say that before you were given access to the Inquiry material your impression was that the decision-making processes in Wales during the pandemic were, in your words, overly complex, but then having worked through the full body of material that you have been given access to, you say “a rather more coherent pattern of response from the Welsh Government has come into focus”.

I just want to ask you, your initial impression, then, of over-complexity, was that due to the sheer number of entities and mechanisms within the decision-making structure or your understanding of the decision-making process, or a combination of both?

Professor Daniel Wincott: So I think it’s a combination of both, you know, there – the Welsh Government did have a number of structures kind of within the government but also, you know, kind of advisory government structures. I think this reflects a kind of orientation of the Welsh Government towards working in partnership. You know, you’ll hear quite a lot about kind of co-production and partnership working in Wales. But I think it also reflects the relative lack of specialist academic work or what you might call kind of long-form journalism specifically focused on Wales. So, you know, by contrast with Scotland and Northern Ireland, Wales doesn’t have a strong Wales-focused media. You know, almost all the newspapers in Wales are essentially the London editions, whereas, you know, even the London-based newspapers in Scotland will have distinctive Scottish editions. And that has all sorts of implications for communication and for messaging and so on in Wales.

But it – at the early stage, because there’s relatively little academic research, I was really heavily reliant on what I could find that the Welsh Government had produced in the public domain and then on journalistic accounts, and, you know, I have to say that, you know, for example some of the materials produced by Andrew Goodall, who’s listed as Director General, Health and Social Services Group but is now the permanent secretary, are amongst the most complete and comprehensive accounts of Welsh public administration that exist anywhere, I think, you know.

So reading, you know, I kind of understood the system as it operated, but, you know, it hadn’t really been set out in that kind of detail in any scholarly articles, you know, the community of scholars focusing on these things in Wales is relatively small, much smaller, say, than in Scotland.

Lead 2B: I understand.

Professor, by way of orientation, you deal with the initial period January to March 2020 starting at paragraph 104 of your report. I don’t need you to pull it up. But in terms of that period, so the first few months of the pandemic, in respect of four nation approach there was – you say in your report it was very much one of co-operation between the four governments of the UK leading up to and including the first lockdown. Is that a fair summary of your assessment of that period?

Professor Daniel Wincott: Yeah, I think that’s a – that’s a good summary, although I would also say that, you know, there were incidents of kind of friction even during that period of co-operation.

Lead 2B: And I think you’ve mentioned some of those in your report, and we will obviously have regard to those.

If we just go through the various factors within that, we know that during that period January through to March there were a series of COBR meetings, initially chaired by Matt Hancock as Secretary of State for Health and subsequently by Mr Johnson. Now, there is a debate about whether the right person from the Welsh Government attended. We know Mr Gething attended the first three COBR meetings, Mr Drakeford’s first attendance wasn’t until the COBR meeting on 18 February. Now, I don’t want to spend time on that now, but, as a general point, the Welsh Government was invited to and did attend COBR meetings, whether in person initially or remotely; that’s right, isn’t it?

Professor Daniel Wincott: Yes.

Lead 2B: One of the products of those early COBR meetings was the Coronavirus: action plan, at INQ000066061, which we can see on the screen there. That’s the first page of the action plan published 3 March.

Now, the first point to note, just from that first page, not only does the title explain that it’s a guide as to “what you can expect across the UK”, but then immediately underneath that box are the illustrative logos showing that it was the work not just of the Westminster Department of Health and Social Care but the three devolved governments, including, of course, the Welsh Government.

If we can please go to page 10 of that action plan, that sets out the well known, as we see at paragraph 3.9, contain, delay and mitigate.

Then the paragraph above, 3.8, it reads:

“The different phases, types and scale of actions depends upon how the course of the outbreak unfolds over time. We monitor local, national and international data continuously to model what might happen next, over the immediate and longer terms.”

Would you agree that this anticipates, this action plan, in early March, that there might be variations in response to the virus?

Professor Daniel Wincott: I would, absolutely. I would just note one potential ambiguity in this paragraph. It says “We monitor local, national and international data”, and it’s not clear what “local” and “national” mean in this context. So does “national” refer to the whole of the UK? Does it mean they’re monitoring each of the nations, as it were, of the UK? Does “local” include localities in England and then the devolved parts of the UK? So, you know, I mean, this is a standard way of talking about these data, but the complexity of the UK doesn’t kind of necessarily sit neatly in that kind of language.

Lead 2B: No, Professor, and the questions you ask are good and valid questions and we’ll be hearing evidence later in these hearings from people that had a hand in drafting and input into this document.

So we spoke earlier about policy variation being, I think in your words, an automatic consequence of devolution, so this appears to be expressly recognised in this action plan.

Then if we can have a look, please, at page 17, paragraph 4.40, we see there a reference back to COBR, and four lines up from the bottom:

“The respective crisis management mechanisms across the Devolved Administrations have also been stood up and will operate in very similar terms to that of COBR within their own nations, and all four co-ordination centres are linked up on UK-wide planning and delivery of the response to Covid-19.”

So it’s fair to say, looking at that, would I be right, that the plan at that stage, this is early March 2020, was very COBR-centred, COBR would be the place where the governments of the four nations would come together and would pursue a combined response to Covid?

Professor Daniel Wincott: Yes.

Lead 2B: I’d like to just change topic slightly and ask you some questions about the UK Government’s legislative response to the pandemic and how – particularly how that impacted on the Welsh Government’s strategic response.

So we know that at the start of the pandemic the UK Government had on the statute books the Civil Contingencies Act 2004 and that provided ministers with the ability to take emergency powers in the event of a catastrophic emergency and appoint governors, for example, for parts of the UK.

Now, it also had on the statute books the Public Health (Control of Disease) Act 1984, which provides that regulations may be introduced to manage an infection which presents or could present a significant harm to health.

Now, as we have already touched upon, under the Civil Contingencies Act, decisions would be made, and you deal with this in your report, by the UK Government, and the Welsh Government would be a Category 1 responder, so effectively implementing those decisions.

In contrast, Public Health (Control of Disease) Act, public health obviously being a devolved matter, Welsh Government would be the entity making the actual decisions for themselves; correct?

Professor Daniel Wincott: Yes.

Lead 2B: So did the choice of which legislation to use to respond to the pandemic, in your view, did that have important implications for Wales and also the type of structural response to the pandemic across the UK?

Professor Daniel Wincott: It did, yeah.

Lead 2B: I think you refer in your report at paragraph 105 to the First Minister’s evidence to the Inquiry that he expected the UK Government to take the key decisions for the whole of the UK and that you refer to the fact that Mr Drakeford’s expectation was that civil contingency powers would be the primary instrument used to respond to the pandemic and that this expectation was one that you say was generally held across the devolved administrations.

Now, we know that the decision was made by the UK Government to respond to the pandemic through the use of public health powers, and also the powers under the Coronavirus Act – and you’ll be glad to know I don’t intend to get into the fine detail of the Coronavirus Act with you, which of course addressed all sorts of issues relating to emergency measures that were taken and lockdown and so on and so forth.

Would you, though, agree in general terms that one of the purposes of the Coronavirus Act was to facilitate a co-ordinated and consensual approach across the UK but also whilst at the same time facilitating deviation where necessary?

Professor Daniel Wincott: Yeah, I think that’s right.

Lead 2B: So that Act, the Coronavirus Act, that’s really of a piece with the approach that we have been discussing relating to, just a moment ago, the action plan, it anticipated a four nations approach; yes?

Professor Daniel Wincott: Yes.

Lead 2B: Now, the reason that this is of some interest is that latterly there has been some debate as to whether that particular sort of legislative approach was the right one to have chosen, and as we’ve just seen, and as you refer to in your report, it’s not one that the First Minister anticipated.

Now, Mr Johnson in his witness statement to Module 2 of the Inquiry – and perhaps we can have this up on the screen, it’s INQ000255836, and this is – yes, page 30 – this is Mr Johnson’s report at paragraph 126, he says:

“Looking back, we should have thought much harder about the legal basis for the measures proposed. There is a respectable argument that we should have used civil contingencies legislation rather than public health legislation. By allowing for at least the appearance of a divergence in approach between the various parts of the UK, we were risking considerable public confusion and frustration – when clarity of message was crucial.”

Then perhaps just one further paragraph of his witness statement.

Paragraph 153, which is page 37, please.

So at 153, I think we are about four lines down, it starts:

“It would perhaps have been better, in retrospect, if we had formed policy under the Civil Contingencies Act 2004 so as to bind the United Kingdom together. We should then have met regularly, UK Government and DAs, to decide the policy together and to stick to it.”

Now, we know from evidence heard in Module 2 that COBR was advised that it wasn’t open to the UK Government to use the Civil Contingencies Act to the pandemic because it wasn’t an unforeseen event and so the Public Health Act powers were used.

The important point to draw from what Mr Johnson is describing, so namely an alternative legislative response, would have seen, would it not, a very different response to the pandemic?

Professor Daniel Wincott: It would have seen a different response to the pandemic, yeah.

Lead 2B: We know from what the First Minister has said, and you have picked up in your report, that once the decision was made to rely upon public health powers as the basis for responding to the pandemic, the First Minister agreed with that decision, his words were it allowed the Welsh Government to calibrate a response which reflected the particular circumstances in Wales, but that decision, that UK Government decision to use public health powers, was not formally made until 20 March. So is it fair to say that what you’ve seen that up until then, up until 20 March, it appears that the Welsh Government and the First Minister had assumed the primary decision-making power would remain with the UK Government?

Professor Daniel Wincott: That certainly seems to be the First Minister’s understanding of the situation. I have to say that, you know, trying to track through references to different kinds of powers during that early phase is complicated and I remain a little bit unclear about exactly when, kind of, decisions were – or exactly how these matters were discussed, how far they were aired and so on, at any earlier stages. So there are references to public health powers, I think, in some earlier documents. But, you know, so there’s a certain – a certain amount – a certain lack of clarity for me, which I haven’t been able to resolve, I’m afraid.

Lead 2B: In light of everything we’ve looked at and discussed, do you feel able to comment on whether the First Minister’s assumption that this would be effectively Civil Contingencies Act powers rather than public health powers was a reasonable assumption to hold? Is that something you feel able to comment on?

Professor Daniel Wincott: Yeah, I mean, I think I would say it was, kind of broadly speaking, reasonable based on what I understand of the situation. You know, I’ve also seen in some of Michael Gove’s evidence, his in-person evidence, as it were, to Module 2, he has made reference to Michelle O’Neill, the Deputy First Minister of Northern Ireland at the time, also expecting civil contingencies would be the basis of the power. So, you know, I think it’s reasonable that that was a fairly widespread view, including across a range of different kind of political perspectives.

Lead 2B: Let me move on, but in so doing return to a topic we’ve already touched on, which is the question of funding.

Now, in your report, it’s paragraph 113, you refer to the UK Government’s Coronavirus Job Retention Scheme, so that’s the furlough scheme. You describe it as providing the foundation for pandemic governance across the UK, including Wales.

Now, we don’t need to go through the detail, but in summary the consequence then of the Barnett mechanism that you described eloquently to us earlier was that where the UK Treasury set up these extremely money-intensive schemes, so furlough, bounceback loans, business interruption schemes and so on, the Barnett mechanism meant that there was extra funding for Wales and the other devolved administrations; is that right?

Professor Daniel Wincott: I’m not sure that’s quite right. I mean, things like the furlough scheme and the Coronavirus Job Retention Scheme were UK-wide funding streams so that people across the UK could draw on them and they were drawing on Treasury funds. The block grant consequentials came from spending in England on matters that weren’t also covered in Wales, you know. And a colleague of mine in the Wales Governance Centre at Cardiff University who works in the fiscal analysis unit wrote a report in – published in November 2020 where he said at that stage it looked as if in Wales there wasn’t disproportionate spending from those central funds as compared to spending in England. So the idea that, as it were, more was spent in Wales from those central funds I don’t think – at least for that first phase of the pandemic, I don’t think stacks up.

Lead 2B: I understand. And I think you explained earlier that Barnett funding, it’s not ringfenced, so in other words Wales doesn’t need to spend it in the same way that England has spent it. But you refer in your report, and I don’t think we did touch on this earlier when we were dealing with funding, to the introduction by the Treasury of a Barnett or sometimes, I think, called a coronavirus guarantee.

Just in a few sentences could you explain first what that is and why you think that is particularly important in terms of the pandemic response in Wales?

Professor Daniel Wincott: Okay, so that relates back to what I was saying previously about – about how the block grant is based on spending outcomes in England, so that if spending is allocated for England and not actually spent, then any block grant consequential can be clawed back by the Treasury. So effectively what the coronavirus or Barnett guarantee did was it gave the devolved governments comfort that where the UK Government was allocating substantial funds for coronavirus purposes in England, that those funds would be allocated to Wales and the other devolved governments and not clawed back at the end of the – at the end of the period.

So an example would be the UK Government allocated a huge amount of money for its test and trace system. The test and trace system implemented in Wales was much, much cheaper, but the Welsh – you know, even if all the billions of pounds – I can’t remember exactly what the amount was, I shouldn’t say billions of pounds, but even if the substantial allocation wasn’t spent in full, that money wouldn’t be clawed back from Wales, so they could then confidently allocate it to whatever purposes they felt necessary, without the risk of it being clawed back.

This goes back to my point about the kind of anxiety about open-ended liabilities that I think is a kind of significant feature of the devolved arrangements as they work in Wales.

Lead 2B: We spoke a moment ago about the involvement of COBR in those early months of January to March 2020. I just want to take perhaps a step to one side again and talk about SAGE, so the Scientific Advisory Group for Emergencies, because you make a few points about SAGE in your report that I just want to look at with you.

Professor Daniel Wincott: I’m sorry, could I just make one other point, which I think is really quite an important point, about the structure of public spending and how that affects pandemic response? I mean, not for this pandemic, but thinking about the future.

Lead 2B: Of course.

Professor Daniel Wincott: If we imagined that coronavirus had arrived first in a population centre in one of the devolved parts of the UK, there’s no straightforward mechanism whereby the additional spending required to deal with that as it first hit would be generated in the UK system. So, you know, we know that coronavirus hit in London first and the response was keyed around dealing with that issue. But if, say, a group of academics from China had visited one of the universities in one of the devolved cities and that had been how Coronavirus had first hit, it’s not at all clear how the emergency spending would have been generated.

You know, I suppose it would have had to have been going to the Treasury and asking for some special funding, whereas because it hit in England initially, you know, it was fielded by the standard UK Government arrangements.

I hope that’s not …

Lead 2B: That’s very –

Professor Daniel Wincott: I hope that’s been helpful.

Lead 2B: So just returning to where I was on SAGE and really a few points that you make about SAGE in your report, I think there are three in total, first you make a point about membership, and you refer in your report, paragraph 119, to the fact that:

“Relatively few people who work at universities in Wales sit on SAGE or its sub-committees (in contrast, proportionately larger numbers of academics from Scottish universities are members of SAGE).”

Briefly, just expand on that point and why you make that point in your report, please.

Professor Daniel Wincott: So I think in her report, Professor Henderson kind of talks about SAGE having a kind of English frame of reference, and, you know, I think that was – that was sort of partly mitigated by the presence of people who were kind of living the experience of coronavirus in Scotland but to a much lesser extent in England. And obviously that doesn’t affect, you know – academic scientists are on SAGE for their substantive expertise and it doesn’t matter, in that sense, where in the UK they live, but if they’re bringing their experience to bear, at least on the margins, you know, I think that might be significant.

And I think there’s a broader issue about the way that data on England tends to dominate UK-wide data and, you know, there are often issues about, you know, on surveys the sample size in Wales being too small to say anything meaningfully – meaningful about Wales itself and so on. So I suspect these are the kinds of thoughts that were behind Professor Henderson’s remark about the kind of England frame of reference.

Lead 2B: I think another point you make about SAGE is that, from what you’ve seen, Welsh officials and experts did not have direct access to minutes and papers directly from SAGE and its subgroups, although I think it’s fair to say that access to SAGE materials did improve, and I think from 8 April 2020 the Welsh Government was given access to an online repository of SAGE documents.

Now, the Inquiry is going to hear quite a lot about the Technical Advisory Cell and Technical Advisory Group, TAC and TAG, that were set up in late February and comprised scientific and technical experts that provided independent scientific advice and guidance to the Welsh Government.

One of the driving forces behind establishing TAC and TAG was that the advice and guidance from SAGE was not Welsh-specific, as we’ve just discussed.

Rather than creating a completely new advisory structure in the midst of a pandemic, could an alternative approach have been to seek to address some of those problems that you’ve identified with the SAGE structure with the UK Government, or do you think it was an appropriate or necessary response to set up a new advisory structure in late February?

Professor Daniel Wincott: I mean, I think it was appropriate to set up a – the TAC/TAG structure. The alternative of negotiating with the UK Government to change SAGE isn’t one I’ve considered in any detail, so …

I mean, I suppose – I suppose I think it kind of goes with the grain of the sort of public health approach to managing the pandemic, although it – I’m trying to work out the timeline here. It may be sort of in advance of – may have been set up in advance of the First Minister understanding that the – that the public health legislation would be used. I don’t have the dates in front of me, so I can’t work out that timeline.

Lead 2B: Well, I think TAG and TAC were set up, there or thereabouts, end of February, and I think the evidence might suggest that it’s 20 March that the –

Professor Daniel Wincott: Right, okay.

Lead 2B: – that it becomes apparent that the UK Government is going to use the public health powers rather than the Civil Contingencies Act.

Now, we’re going to explore data and modelling with other witnesses, but because you make one comment in your report, I just want to ask you briefly about that before we take a break.

You say:

“The availability of data and capacity to analyse it in a sufficiently timely fashion to inform policy making, was a continuing issue across the UK and in Wales; perhaps reflecting the structure of the sector these issues seem to have been particularly acute in relation to social care.”

Just, as I say, briefly, in your view are you able to say why that was the case?

Professor Daniel Wincott: So structurally the organisation of social care across the UK, you know, means it’s very much a kind of mixed – mixed provision. You know, a lot of independent provision, increasingly less local government directly provided social care, and, you know, that means that you’re gathering data from a range of different charitable or commercial enterprises. And so having comprehensive data on the sector I think is – has proven difficult across the UK and was, I think, difficult in Wales. I think that’s been acknowledged and there are kind of data strategies for social care in Wales and so on that were developed subsequent to the pandemic, as I understand it.

Mr Poole: My Lady, I’m going to change topic, so therefore that might be a good place for a break.

Lady Hallett: Yes, of course.

Professor, I hope you were warned that we take a break for – we always say it’s for the benefit of the stenographer but I suspect it’s for the benefit of everybody. I shall be back at 11.30.

(11.13 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Poole.

Mr Poole: Professor, I’m going to next ask you some questions about the Welsh firebreak, which, as we know, started on Friday 23 October 2020, ended on 9 November.

Now, you deal with the Welsh fire firebreak in the section of your report starting at paragraph 225. Now, we know there are supporters and there are critics of the firebreak, and the evidence as to how effective it was is unclear, and I don’t want to discuss any of that with you, Professor. I want to, though, explore two aspects of the firebreak. First, continuation of the theme, differences in government responses. And second, again returning to the impact of funding.

Now, the Welsh firebreak is perhaps, would you agree, the clearest example of the Welsh Government adopting a starkly different policy to the UK Government and the other devolved administrations?

Professor Daniel Wincott: It is, it is starkly different. I mean, I think there was something a bit like it in Northern Ireland, but very different to the other governments in Britain.

Lead 2B: Perhaps we can just have a look at minutes of a COBR meeting of 12 October.

INQ000083851. And if we could perhaps, please, go to page 7, paragraph 11 of those minutes.

You see here the First Minister asked if COBR would be held to discuss circuit-breakers, which he noted the SAGE papers had regularly advised on.

Then the same page, further down, at paragraph 16:

“The [Prime Minister] said that the issue of circuit breakers and the ability to keep schools open were particular points of interest.”

Continued success was said to be heavily dependent on individuals’ behaviour, the challenge lay in successfully encouraging a tired and frustrated population to absorb new messages.”

Those minutes can be taken down, thank you.

From what you have seen, would it be fair to say that the UK Government had very little appetite for a circuit-breaker?

Professor Daniel Wincott: Yes, I think that’s right. You know, there was some very clear evidence in Boris Johnson’s Module 2 statement that is very sceptical about circuit-breakers, and specifically, you know, critical of the approach in Wales, and actually contrasts it with a tiered approach in Scotland.

Lead 2B: Indeed. And I think you refer in your report to the UK Government’s Eat Out to Help Out scheme being an example of, you say, the UK Government giving priority to mitigating economic harms rather than Covid impacts; is that right?

Professor Daniel Wincott: There certainly seems to have been an emphasis on that, especially from the Treasury.

Lead 2B: Turning then to the impact of funding on the firebreak, and you deal with this at paragraph 227 of your report, and you refer there to the fact that the Treasury did not agree to extend the furlough scheme to cover the Welsh firebreak.

Now, the Inquiry is going to look at that issue with some later witnesses and I don’t want to with you debate the rights and wrongs of that particular episode, but just as a general point, would you agree that this illustrates a point that we touched on earlier, namely the difficulties faced by the Welsh Government not having the fiscal levers to support individuals and businesses that could not earn income during the pandemic?

Professor Daniel Wincott: Yes, at a broad – at a broad level. I mean, I think also there was quite a lot of commentary, you know, ranging from The Financial Times and the Institute for Government through to people like Kelvin MacKenzie that sort of suggested that the Welsh Government might be pursuing tighter restrictions and, you know, passing the bill on to the Treasury, which I think is a serious misreading, misunderstanding of the way the finance actually worked.

Lead 2B: Thank you, Professor.

Throughout your report you refer to various lessons learned exercises that were carried out by the Welsh Government and also other organisations such as Public Health Wales. Now, the evidence suggests that the period from late summer to early autumn 2020 until the winter months of 2021 seem to have been particularly challenging for the Welsh Government.

One conclusion of a lessons learned exercise carried out by Public Health Wales was that not all lessons identified at the end of the first wave of Covid were actioned successfully, and that’s something you note at paragraph 224 of your report.

Would you agree that there was an opportunity for the Welsh Government to be better prepared for the second wave of the pandemic in autumn 2020, having been through, obviously, the first wave in the spring of 2020?

Professor Daniel Wincott: Yeah, I’ve thought quite long and hard about this, and for me I think one of the tricky things to work through is – is how lessons learned in the first wave might be applied in the somewhat different conditions that held from, you know, the summer 2020 onwards.

I mean, it seems to me that there’s a quite fundamental difference between that initial emergency response where, in effect, a very large-scale redirection of the NHS was undertaken in Wales and across the UK and then, from summer 2020, much more of an attempt to keep a more normal range of NHS services going, you know, even through the various kind of lockdowns and so on. So I think there’s a danger of a kind of false equivalence, when you say there was a lockdown 1 and a lockdown 2 and a lockdown 3; they’re actually quite different kinds of lockdowns.

Now, that still leaves open the question of learning lessons, and it does make me – make me reflect that I would want our governments to be able to kind of absorb and understand that difference and kind of modulate their response in the face of that difference.

There is, I think, quite a lot of evidence that, due to things like the condition of hospital infrastructure in Wales, that infection protection and control proved particularly difficult, and there are some reports that say, you know, that is due to the physical layout of hospitals in Wales. Now, I haven’t seen any kind of comparative analysis of physical layout of hospitals and how that impacted infection rates within Wales or beyond, but it seems to me there is an important point there that governments do need to learn lessons, but they also need to understand that they’re addressing a different policy question, you know, perhaps subtly but I think significantly different policy question, if they’re trying, as I think they should be trying, to provide a wider range of services, as the pandemic emergency continued.

Lead 2B: Thank you, Professor.

Now, a change of topic, and my last topic is going to be public health communications, briefly.

You deal with this at paragraph 256 or certainly you start dealing with this at paragraph 256 of your report, and you make the point there, which is a point you made earlier this morning, you say:

“Compared to Scotland and Northern Ireland, the Wales-specific media is weak, especially in relation to newspapers.”

So printed media is weak, as you explained earlier.

Is it right though to say that Wales does have a distinct radio and television provision, particularly in the Welsh language; that’s right, isn’t it?

Professor Daniel Wincott: Yep, in the Welsh language. And, you know, there is also a distinct provision in English as well.

Lead 2B: You refer in your report to daily broadcasts of the Welsh Government press conferences, which I think started on 30 March 2020, and you describe in your report as BBC Wales reporting an unprecedented demand for its news output, with more than 700,000 viewers tuning in each day. Would you agree that those daily broadcasts were a key part of the Welsh Government’s public health communications strategy?

Professor Daniel Wincott: Yes.

Lead 2B: In your report you also note that although Mr Drakeford’s popularity dipped briefly in Wales at the start of the pandemic and Mr Johnson’s increased, Mr Drakeford’s ratings then increased sharply as Mr Johnson’s fell. And I think I’m right in saying you’re a member of the Welsh Election Study.

And if we can have, please – it’s at page 79 of your report, INQ000411927.

Look there at figure 1. This is data I think collected by the Welsh Election Study to compare public attitudes in Wales towards the UK and Welsh governments’ handling of the pandemic.

We can see there from figure 1 a clear common pattern of higher approval levels for the Welsh Government than the UK Government in terms of communicating decisions handling lockdown and vaccine roll-out.

Overall would you say that the Welsh Government employed an effective public health communications strategy during the pandemic?

Professor Daniel Wincott: I would say overall it did. I think there were, you know, specific examples of mishandled issues. You know, for example there were issues around the firebreak to do with non-essential items in supermarkets and how they were handled and so on, but in general I think the evidence is that their communications strategy was relatively successful.

Mr Poole: Professor, thank you very much. I have no further questions for you.

Lady Hallett: Ms Shepherd.

Questions From Ms Shepherd

Ms Shepherd: Professor Wincott, I ask questions on behalf of Covid-19 Bereaved Families for Justice Cymru, and the question that I’ve got to ask you relates to the evidence of Professor Thomas Hale, which he gave in Module 2 of this Inquiry.

The reference is PHT000000030, and it’s page 26 of that document.

If we could look at the top left-hand quadrant, and it’s line 21 onwards, he says:

“So we see this rollercoaster tendency where restrictions are put into place only after it becomes apparent there will be a very severe threat to the health system. That’s after a large amount of community spread has begun. Because it’s so prevalent …”

And it goes over to the next page:

“… at that moment, the restrictions need to be more stringent and to be in place for a longer period of time than might have been the case otherwise, but precisely because sustaining high stringency for a long period comes with costs, there’s huge pressure to roll them back sooner rather than later and that leaves, inevitably, some residual virus circulating in the population, which lays the seeds for the next wave to emerge. So this kind of tendency to act too late in the first instance and to take measures away too soon in the second instance does tend to lead to the peaks and troughs that these graphs show.”

Then just very finally, the bottom left-hand quadrant, line 17, he says:

“So the countries that were riding the rollercoaster were [I think it’s supposed to be suffering] from a trifecta of large health impacts, high, long periods of stringency, and negative economic consequences …”

So do you consider that this criticism of only implementing NPIs when it is too late, resulting in this rollercoaster approach whereby restrictions are ended too quickly only to be ramped up to maximum, is applicable to the Welsh Government’s response in autumn 2020?

Professor Daniel Wincott: So around the firebreak?

Ms Shepherd: Say from September 2020 onwards.

Professor Daniel Wincott: So this was a phase when local area restrictions were first put in place and kind of spread – you know, spread around Wales and then – and then moved to the firebreak.

I mean, I think there was certainly SAGE evidence of, you know, advice that a circuit-breaker should be implemented and, you know, I think that might have been implemented earlier in Wales. I’m not sure the extent to which, you know, the Welsh Government was, you know, trying to – or anticipating a kind of more general move to a circuit-breaker across Britain, so that may have been one of the things that slowed down that response.

And I’m also not sure exactly how and why, you know, circuit-breakers seemed to get identified as two-week periods. It seems to me one of the critical things about a firebreak or a circuit-breaker is that you pre-announce when it’s going to end, and that was a very clear feature of the firebreak in Wales, that the government seemed very strongly committed to pre-declaring what would happen afterwards, and that became mixed up with the UK Government then introducing its lockdown that wasn’t called a firebreak but lasted longer, a month, but also pre-announced when it was going to end. So, you know, I think there was quite a lot of confusion there.

It’s also unclear to me, you know, simply because this isn’t my area of technical expertise, what – the relationship between that firebreak and the emergence of new variants of Covid, which came through September and then became much more prevalent in – at the end of that year and through the next year, the so-called Kent or Alpha variant and so on.

So exactly what the mix of the causes of the significant increase in infections and deaths, you know, towards the end of 2020 and into 2021 would be, you know, I can’t determine. But I think there is – there was a sense of – a sense that that firebreak might have been introduced earlier. There may also have been concerns about funding it as well that influenced the timing. And again, kind of referring back to a previous set of discussions, it is striking to me that when the UK Government introduced the lockdown at the end of October, beginning of November, the Treasury increased the proportion of the furlough that the government paid from 60%, which it had been in October, to 80%, you know, again apparently responding to things in England. Sorry, I’m mixing up things.

Ms Shepherd: I just want to ask one follow-up question to that, and it’s –

Lady Hallett: Only if it’s within his expertise. I was worried, as you know, Ms Shepherd, that I shouldn’t have given permission for this question because it’s not really within this witness’s expertise. So, first, what’s the question?

Ms Shepherd: I was going to ask: no matter the reason for the Welsh Government implementing the firebreak when it did, was the ultimate result that Wales was in a situation where we had this ramp up, ramp down rollercoaster –

Lady Hallett: I think, to be honest, that’s more for an epidemiologist or a scientist –

Ms Shepherd: Thank you, my Lady.

Lady Hallett: – as opposed to a professor of law and politics, so, I’m sorry, but I think I’m going to have to stop you there.

Ms Shepherd: Thank you, my Lady.

Lady Hallett: Thank you.

Thank you very much indeed, Professor. I’m sorry if we did stray beyond expertise. It’s my fault, I shouldn’t have given permission for that question. But thank you for your help anyway and I’m sorry we can’t have a longer seminar.

The Witness: Thank you.

(The witness withdrew)

Mr Poole: If I can please call Professor Sir Ian Diamond.