3. Professor Karl O’Connor

PROFESSOR KARL O’CONNOR (sworn).

Questions From Lead Counsel to the Inquiry for Module 2C

Ms Dobbin: Can I ask you each, please, to give your full

name to the Inquiry.

Professor Gray: Professor Ann-Marie Gray.

Professor O’Connor: Professor Karl O’Connor.

Ms Dobbin: I’m going to try my very best to manage this,

and I’ll try and direct my questions to which of you I think is probably the best placed to answer, but if I direct it to the wrong person, please let me know.

Lady Hallett: Please don’t worry, I will take into account your written reports, so if there’s something you wanted to say afterwards you think about on the bus on the way home, don’t worry, I will be bearing it in mind.

Ms Dobbin: To start, please, with your report, I think that you have it in front of you, and that both of you signed that report on 20 April 2024; yes?

Professor Gray: Yes.

Ms Dobbin: I think that you have also signed an expert declaration in respect of that report, haven’t you?

Professor O’Connor: Yes.

Ms Dobbin: I won’t go through all of those preliminaries with you, I am going to try, if I may, to just cut through this, but obviously as part of your expert duties you’re also under a duty to draw to the attention of the Chair if you’ve heard anything, for example, that undermines the opinion that you’ve provided here. Okay?

Professor Gray: Yes.

Ms Dobbin: I think as well if I can just take you through your respective expertise, I’m going to try and do this at a bit of a pace, but Professor Gray, I think you have a doctorate in the development of health services from the Ulster University; is that correct?

Professor Gray: Yes.

Ms Dobbin: You’re a professor of social policy at the School of Applied Social and Policy Sciences at Ulster University as well.

Professor Gray: Yes.

Ms Dobbin: You have a special interest in terms of your research in health and social care, devolution and social policy, and gender and social policy; correct?

Professor Gray: That’s correct.

Ms Dobbin: You’ve also written two books, I think, which touch on social policy and welfare as well; is that correct?

Professor Gray: Yes.

Ms Dobbin: I know that you’ve published a number of articles in journals, those are set out in the report as well. You were a member of the social work and social policy panel in 2022 as well. Is that within Northern Ireland?

Professor Gray: No, that’s the UK research excellence framework panel.

Ms Dobbin: I’m grateful. You’re also the chair of the UK Social Policy Association as well.

Professor Gray: That’s correct.

Ms Dobbin: And the chair of Youth Action in Northern Ireland also, and you teach on policy in government as well and on collaborative policymaking in health and social care as well. Yes?

Professor Gray: Correct, yes.

Ms Dobbin: Professor O’Connor, I think it’s right you have a doctorate from the University of Exeter and in fact it was awarded the Hutton prize for excellence in terms of improving standards of governance; is that correct?

Professor O’Connor: Yes, that’s correct.

Ms Dobbin: You’re a professor of public administration and public policy as well; is that right?

Professor O’Connor: That’s correct.

Ms Dobbin: At Ulster University also. And you’re the research director for social work and social policy at that university also; yes?

Professor O’Connor: That’s correct.

Ms Dobbin: And you were the founding director of the Centre for Public Administration at the university as well; yes?

Professor O’Connor: That’s correct.

Ms Dobbin: And you have a special interest in the role of the civil servant in conflicted societies as well; is that also right?

Professor O’Connor: That’s correct.

Ms Dobbin: As well as that you remain, I think, the subject lead for public administration at Ulster University –

Professor O’Connor: Correct.

Ms Dobbin: – and you have that, that’s one of your current responsibilities; yes?

Professor O’Connor: Yes.

Ms Dobbin: Now, I think between both of you, you probably cover the concept of good governance, would that be an accurate way to put your report?

Professor Gray: Yes.

Professor O’Connor: Yes.

Ms Dobbin: What I want to do is to touch upon perhaps some of the most significant issues that you touch upon in your report and perhaps to ask you whether or not any of the evidence that you have heard or seen or read in the course of the Inquiry has changed any of your opinions.

Now, first of all, I think I need to establish that I think you have watched a number of the witnesses give evidence.

Professor O’Connor: Yes.

Ms Dobbin: Or read the transcripts.

Professor Gray: Yes.

Ms Dobbin: Is that right?

Professor O’Connor: Not all of them.

Ms Dobbin: Not all of them. Can I just check, then, to be clear, whether or not between you, you have read or seen, for example, the evidence given by most of the senior civil servants?

Professor O’Connor: Yes.

Professor Gray: Yes.

Ms Dobbin: All right, and have you heard the evidence given, for example, by the Chief Medical Officer?

Professor Gray: Yes.

Professor O’Connor: Yes.

Ms Dobbin: And the Chief Scientific Adviser as well?

Professor Gray: Yes.

Professor O’Connor: Yes.

Ms Dobbin: Thank you.

So one of the issues that’s perhaps to the fore in your report, is the concept of collective government responsibility, and what you said at paragraph 27 of your report, I won’t take you to it unless we need to, is that an attempt to encourage a convention of collective responsibility has been met with limited success in Northern Ireland.

I think it’s right that it follows from your report that because there is no government of the day in Northern Ireland, that’s why there isn’t a concept of collective responsibility; correct?

Professor O’Connor: Yes.

Ms Dobbin: But that nonetheless some of the principles that underpin it could nonetheless be applied in Northern Ireland; is that right?

Professor O’Connor: Yes.

Ms Dobbin: So turning, first of all, to one aspect of collective responsibility is the principle of the confidentiality of collective discussions on the part of ministers.

In terms of any evidence you’ve heard, has your opinion advanced in any way in your report about that as a concept in Northern Ireland? Or do you have concerns, perhaps that might be a better way to put it, in terms of what you’ve heard in the course of this Inquiry about the concept of confidentiality?

Professor O’Connor: Yes.

Professor Gray: Go ahead.

Professor O’Connor: We were – well, I’ll speak for myself and you can speak for you.

I was disappointed to see the lack of confidentiality in the – and respect for confidentiality in that room, to allow ministers to have an open and frank discussion about serious policy consequences. The way Cabinet should work in our system, the Westminster system and our version thereof, is that we expect ministers from a broad background, broad array of backgrounds, to be able to discuss openly and frankly the possibilities and the different recommendations that have been put to them by their senior civil servants, and if we are to have confidence in our governance system, that discussion needs to take place at that table, not in pre-meetings beforehand, not in – and certainly not with a running commentary to the media while these conversations are happening.

So I was disappointed, but not altogether surprised.

Ms Dobbin: All right. Well, it may seem like an obvious question, but detrimental to good governance in Northern Ireland that that should have been a feature of –

Professor O’Connor: Yes.

Ms Dobbin: – collective discussions throughout the pandemic?

Professor O’Connor: Without a shadow of a doubt, yes.

Ms Dobbin: I can see you agreeing.

Professor Gray: I completely agree, but also detrimental in terms of the public perception and how those, that lack of confidentiality presented to the public, perhaps, a picture of a dysfunctional Executive, and the harm that that may have created in terms of the public trust in the messages being communicated, both by individual members of the Executive but by the Executive as a whole as well.

Ms Dobbin: All right.

Another part of your report that you have linked to there not being a formal concept of collective responsibility is a possible tendency on the part of departments to act in an autonomised or compartmentalised way and, again, has any of the evidence that you’ve heard in the Inquiry advanced the opinions that you express in your report about that, or again, added to concerns that you might have about how departments operate in Northern Ireland?

Professor O’Connor: Yes, so it is unfortunate, but there are good reasons for the Good Friday Agreement being set up as it was, but each of our departments are a separate legal entity, as you’ve heard on numerous occasions. This can lead to siloing, more so than in Westminster and other governments, and one of our frustrations was that the arrangements for interdepartmental working in times of a crisis were not initiated sooner, because that could have helped bring information – collate information from across various different departments at a mid-level, mid civil servant level, and senior civil servant level, to allow for learning to happen across departments before the pandemic actually took hold in Northern Ireland.

Lady Hallett: Before we go to, or Ms Dobbin takes you to the triggering of NICCMA arrangements, can I just take you back to, because of the particular circumstances in Northern Ireland, you have the separate departments, separate ministers, separate Civil Service, which I confess came as a surprise to me when I started these hearings. I can see, just about, why you might have separate ministers who are autonomous in their departments because of the particular circumstances in Northern Ireland. What I still find hard to follow is having separate Civil Service departments, and no overall … I still find that difficult to get.

Professor O’Connor: It is difficult, but the permanent secretary is responsible to the minister, so if the ministers don’t have collective responsibility it would be very difficult for the permanent secretaries to respond to the Executive as a whole.

Now, they are responsible to the Assembly as a whole, through …

Lady Hallett: But if you had, as we have in England, you had a, what they call the Home Civil Service, the permanent secretaries could be responsible to the chief of the – head of the Civil Service, surely?

Professor O’Connor: Yes.

Lady Hallett: I appreciate that’s not the case here, but I still can’t – I can see how politicians might be separate, I can’t work out why the Civil Service has to.

Professor O’Connor: Traditionally the head of the – it’s different now, but traditionally the head of the Civil Service was also the permanent secretary for the Executive Office, which was under the First and deputy First Minister, which may have meant that it would be difficult for a permanent secretary from a department that was not part of the two main parties to accept direction from a head of the Civil Service.

Lady Hallett: Anyway, we are where we are, and the only answer – and this is where I interrupted – is to ensure that you trigger the cross-government department working in a time of emergency. That’s the only answer.

Sorry I interrupted.

Ms Dobbin: No, I …

Professor Gray, did you have anything to add on that?

Professor Gray: Very little, except to say that unfortunately I think the lack of co-operation between government departments really during this pandemic really reinforced a history of an inability really to co-operate effectively, particularly on substantive issues of social policy and issues where there was likely to be some ideological disagreement, and I think that came to pass during the pandemic as well, with regard to issues such as the easing of restrictions, for example.

Ms Dobbin: All right.

Just coming back, if I may, to the not standing up of the civil contingencies arrangements for some time, I think the point that has been made on behalf of some civil servants was that there may not have been enough people –

Professor O’Connor: Yeah.

Ms Dobbin: – in order to do that, so that’s what’s been said, but just putting that to one side, there appears to have only been one civil contingencies meeting of officials which took place on 20 February, I think until about 18 March, and I think there was one meeting of ministers on 12 March.

Does it surprise you that there should have been no other meetings, if it’s right, apart from those?

Professor O’Connor: I’m sure there would have been informal meetings and I know that, from the evidence that was presented here, that civil servants had been taking this very seriously before 17 March, but – and I know only too well that our Civil Service has been understaffed for many, many years, so I do accept that point. However, given what we knew as February progressed was happening in the rest of the world, and given how late the virus came to Northern Ireland, I think – and this is with the benefit of hindsight – that it would have been prudent to step up those civil contingencies arrangements much earlier. While it would have taken people away from other very important tasks, bear in mind at this time our Civil Service has already been pared down, so is only working on what it is statutorily required to do, due to underinvestment for a number of years. So to take – to pull a resource from somewhere is going to mean that we are going to stop doing something, and it’s very difficult to stop doing something that you’re more than likely obliged to do by law.

So this redeployment of staff wouldn’t have been an easy decision, and where would the staff have come from? Now, if we were able to do it for preparing for EU exit, surely we would have been able to do it in preparation for a pandemic.

Ms Dobbin: So is your point, Professor O’Connor, that because there had been – those preparations had in fact been arranged for, or in the event of a no-deal Brexit, and I think that that included the creation of this special room that we heard about from Minister Swann, and that very many people, for example, had been trained, that the question you’re posing is the one you’ve just said, if you can in fact do all of that, what happened when it came to the pandemic? Why is there not an equivalent response? Is that effectively what you’re saying?

Professor O’Connor: I agree.

Ms Dobbin: All right.

Professor Gray, do you have anything to add on that?

We’ve also seen, perhaps, in the course of the Inquiry about the very important role that was played by the Chief Medical Officer, and perhaps the lack of other advisory structures that were available in Northern Ireland as well, do you think that ought to be a cause for concern? So in other words the fact that there isn’t perhaps a structural response but rather a response to individuals to these circumstances?

Professor Gray: If I could go first.

It does certainly seem, at least in the early days of the pandemic, that there was a lot of responsibility, a lot of weight on the Chief Medical Officer, and we have heard from the CSA’s evidence, for example, and other evidence, that he was returning to work after some time as well. I think one thing to note is that our Chief Medical Officer has a very wide range of responsibilities, you know, comparable, for example, or compared, for example, to the Chief Medical Officer in England. Now, the role, the responsibilities, the accountability of chief medical officers does vary quite considerably between countries, but if we stick to within the UK, then the Chief Medical Officer for England, Sir Chris Whitty, is the UK Government Chief Medical Officer, he is not a Department of Health Chief Medical Officer in the way that Sir Michael McBride is in Northern Ireland, for example.

And when we look at Sir Michael’s – the range of responsibilities he carried, the range of policy and strategic responsibilities, and alongside that then responsibility as an independent public health adviser, and as a – the head professional for public health responsible for communicating messages to the public as well, I think it does raise questions about the weight of responsibility being placed on that individual within the Department of Health.

Ms Dobbin: Just in terms of, you said about the CMO providing independent advice, but I think it’s been established that he is in fact, he’s not just an adviser to the Department of Health but is also part of the management –

Professor Gray: Yes.

Ms Dobbin: – of the Department of Health as well. Again, ought that to be a cause for concern, the fact that there isn’t, as it were, independent advice across government in Northern Ireland?

Professor Gray: I think I would say that there are other countries where that is also the case, where a Chief Medical Officer would have those kind of dual responsibilities. However, it is again, you know, more unusual, if we compare Northern Ireland to the situation in England, and I do think that in the context of a pandemic, whenever things are moving quite rapidly, whenever there’s new information emerging, some of that is going to be potentially controversial within government, that it does raise questions about the complexity of that role then in trying to disentangle one set of responsibilities from another, and being able to give or feeling able to give entirely independent advice when you also carry policy responsibilities.

Now, I’m not saying that the Chief Medical Officer did not have the ability to do that, what I’m saying is that it would be quite a challenging thing to do, I think, in those circumstances.

Professor O’Connor: Yes.

Ms Dobbin: It might be thought, and the deputy First Minister and the First Minister have yet to give evidence, that the response to the pandemic was seen almost entirely through the lens of a health response, and possibly as opposed to as a whole-government response, and I wonder from the evidence that you’ve seen and heard whether or not you have an opinion on whether the evidence potentially points towards that.

Professor O’Connor: Yes.

Professor Gray: I think it does, certainly in the early phases of the pandemic it certainly does, it looks like an unusually long delay in Northern Ireland in this pandemic being accepted as something which has to have a whole-system or a whole-government response.

Ms Dobbin: Professor O’Connor, I can see that you’re nodding.

Professor O’Connor: Yes, it’s a cross-cutting issue across government, while health was the lead department, the clue’s in the title there, the “lead” department, they’re not the sole department, and they should at one point have been leading the response, but it is a cross-cutting issue that was across all departments and it required a response from every single department.

Ms Dobbin: Again, do you think that, is that something do you think that ought to have been more obvious at an earlier point in the pandemic?

Professor O’Connor: Yes.

Ms Dobbin: Just perhaps moving on, we haven’t actually heard very much about any other structures being involved in the response to the pandemic, but we know that there was the Civil Contingencies Group that after 18 March did start to meet, but wasn’t a decision-making group, and that most of the decisions were taken by the Executive Committee. Again, in terms of your expertise in governance, did you have any other concerns about the way civil contingencies arrangements were configured, or the sort of structural response once they were actually stood up?

Professor O’Connor: My understanding was, and correct me if I’m wrong, the CCG M for ministers and the Executive Committee were one and the same.

Ms Dobbin: They became one and the same, yes.

Professor O’Connor: So I would … the system as designed could potentially have worked quite well, where departmental operation centres –

Ms Dobbin: Yes.

Professor O’Connor: – would have fed information to a hub, based or responsible to the head of the Civil Service, that hub would have collated that information and presented it in an accessible format for permanent secretaries to communicate to ministers, for ministers to have an open discussion with all of the knowledge from across the departments in front of them. That sounds very simple, but in practice it’s a lot more difficult. But it all started from what we have read beforehand that the hub found it difficult to get information out of the departments, they had no line management responsibilities of people working in the departments, so they could not command people – not that we should ever command people, but that we should entice people to give us information so that it can be collated effectively and presented effectively to permanent secretaries and then to ministers in a collated format.

For me, in the midst of a pandemic, that can put a structural order on decision-making so that a number of different eventualities are taken into account. It’s not about: this works for health so let’s run with it. What are the implications for communities? What are the implications for the disadvantaged, the disabled, the elderly, the young people? Everyone has an opportunity around the Cabinet table or the Executive table to contribute.

Ms Dobbin: In the evidence that you’ve seen or what you’ve heard and what you’ve read, have you been able to locate anywhere what the centralising co-ordinating part of the response to the pandemic was, or who took on that role, if anyone?

Professor O’Connor: I’ll go first, and then you can …

Professor Gray: Yes.

Professor O’Connor: There was obviously a clear frustration

among our very, very experienced civil servants at the

outset of the pandemic that this was not being taken

seriously politically. I think that’s what caused –

and this is my own assumption – that’s what caused them

to work around the normal structures, which is what we

always do in Northern Ireland, we never work through the

normal structures, whenever there’s a difficult issue,

we try and work around them. But as we work around

them, because we’re a small society, different lobbying

groups and action groups would be brought to the table

to discuss and input into the process. Given that this

was a fast-moving pandemic response, when civil servants

try to work around the blockages, there isn’t the

opportunity for – there may not be the opportunity for

these groups to input into that process.

So a long-winded answer to your question, I think in

the early days of the pandemic I think it was a very

strong Civil Service response and a very clear

frustration on the part of the Civil Service that there

was a lack of political direction at that time.

As the pandemic progressed, and we move into the

autumn, we see growing political dominance in the

process, which is usually to be welcomed, it is

a democracy, after all, and what we’re expecting to see is with this political dominance a clearer instruction to civil servants, and that’s what civil servants crave, they want direction from their ministers and from government. They were very frustrated at the outset that they didn’t have that clear direction from government. In what we call the second phase of the pandemic or in the autumn of the pandemic, while there was more political influence, that still didn’t lead to what we would call good government or clear direction.

Ms Dobbin: Professor Gray, sorry, do you have –

Professor Gray: No, just briefly to concur with that and to say I think we would have expected the lead to have been taken in the early stages by the Department of Health, you know, it was identified as a global health pandemic. What we might then have expected to see was a more co-ordinated response as the realisation struck that it wasn’t going to be short term, that it was going to involve education, it was going to involve, you know, issues around children’s services, issues around people’s disability, domestic abuse and so on, and we didn’t see that scaling-up of a co-ordinated response for quite some time, and then when it did happen we see the political tensions creeping in which made it difficult then for an efficient response to be activated at times.

Ms Dobbin: Okay.

I’m going to move on to a different topic to ask you about, this is a very specific topic, to ask you about the memorandum of understanding that was signed with, well, I think we’re unclear it was signed, because we have an unsigned copy, but we understand it was concluded and agreed between the respective, I think, departments of health, and I think the CMO in fact said that he had signed it.

Again, just to ask you about that, the idea that a memorandum would be signed between officials as opposed to perhaps respective political leaders or permanent secretaries; is that a surprise, or again is that an inevitable consequence of the political position?

Professor Gray: Potentially both, I think, at that level of what was attempting to be agreed at this time, one might have expected to have seen political input. So for that memorandum of understanding to have been signed by officials, if that was the case, by the chief medical officers, it potentially raises issues of political commitment to the memorandum of understanding in the first place, or to a – or maybe a reflection of historical collaboration as well, you know, it’s one thing to step up collaboration in an emergency if there has been fundamentally good and sustained working relationships and processes in place, it’s quite another and challenging thing to do that if that hasn’t been the case, and I think, you know, witnesses have previously spoken and written in evidence about the areas where there has been, you know, really quite successful North/South collaboration around cancer services, children’s heart surgery and so on, but I wouldn’t say it has been the case on a day-to-day basis that officials, you know, have had that relationship or politicians in the areas of health have had that relationship.

Ms Dobbin: So, I mean, setting aside political leadership, would you have expected perhaps even the sort of MoU might have been signed by the Executive Office with a counterpart in the Republic of Ireland?

Professor O’Connor: Certainly.

Ms Dobbin: Okay.

My Lady, those were all of the questions that I was going to ask. Have you any questions?

Lady Hallett: No, I haven’t, thank you.

Questions From the Chair

Lady Hallett: Just one question: going back to collective responsibility – sorry, it’s a long time since I did constitutional law, so forgive me – how do you have collective responsibility when you have a coalition of five diametrically opposed political parties?

Professor Gray: We don’t have collective responsibility.

Lady Hallett: No, you don’t.

Professor Gray: No, we don’t, no.

Lady Hallett: Ms Dobbin went from collective responsibility to confidentiality. I think they’re two different concepts.

Professor Gray: Yes.

Professor O’Connor: Yes.

Professor Gray: Yes.

Lady Hallett: So is basically collective responsibility impossible if you have this kind of coalition?

Professor O’Connor: With difficulty. In Westminster, if you had the SNP, Labour, the Lib Dems and the Tory party governing the response – the Conservative Party, governing the response to the pandemic and you expected Cabinet collective responsibility, it might be difficult.

Professor Gray: And we don’t – constitutionally, the concept doesn’t apply in Northern Ireland, because it’s accepted that in a mandatory coalition that would be difficult. But they are – I think the ministers’ code of practice is that they are supposed, where possible, to achieve decision-making by consensus, but the norms of collective responsibility as we would understand it from, you know, the Whitehall model, for example, don’t apply.

Lady Hallett: Going back to the question of leaking, which I find extraordinary, and I did ask one witness, I think, why do they bother to take the ministerial oath if they’re just going to disobey it, but, I mean, there are practical ways, although not with remote meetings as pointed out this morning, but there are practical ways, like saying you can’t be using your device when you’re physically present in a room, but has anybody looked into whether there are any legal devices? Like is it misconduct in a public office?

Professor O’Connor: Hm, I don’t (inaudible), no.

Lady Hallett: It’s just a thought. If you take an oath –

Professor O’Connor: No, well, it does go against integ – as a civil servant, it would go against your integrity, and that is part of your code of conduct.

Lady Hallett: But it must breach the Ministerial Code. When you attend an Executive meeting, you’re conducting your public office. I just think it’s something that this country or this – Northern Ireland should not have to put up with, and I’m just trying to think of ways to try and stop it.

Professor Gray: Yes. Although we do have, you know, prior to the pandemic we had, you know, a number of examples of ministers speaking in public against another minister or, on some occasions, a minister taking another minister to court over decisions, and I think, you know, as Professor O’Connor said earlier, it is just the unique circumstances of our arrangements, our governance arrangements here that such things are tolerated or maybe expected.

Lady Hallett: I think it’s time they stopped being tolerated, but there again I’m an outsider, so –

Professor O’Connor: No, we fully agree as well, yeah.

Lady Hallett: Thank you both very much indeed.

As I say, thank you for your written report, I’ll make sure I read that with greater care; poor Ms Dobbin had to canter through this afternoon.

Ms Dobbin: Yes, I apologise for that.

Lady Hallett: Thank you very much for your help, very grateful.

Professor O’Connor: Thank you.

(The witnesses withdrew)

Lady Hallett: Very well, 10 o’clock tomorrow morning, please.

(4.28 pm)

(The hearing adjourned until 10 am on Tuesday, 14 May 2024)