London: The UK Covid inquiry packs up and leaves Edinburgh with big political and constitutional questions hanging in the air.
Would Scotland have been better off had it been able to take all of its own decisions, including those relating to borders and finances, as an independent nation?
Should the UK government have been able to make the most important public health decisions — such as lockdown — for the whole of the UK, or at least for the whole of the island of Great Britain?
Or is the current constitutional framework – with the issue of health devolved to Edinburgh, and control over borders and the wider economy reserved to Westminster – optimum for dealing with a pandemic?
It is the inquiry chair, Baroness Hallett, who must decide whether and, if so, how to answer those questions after hearing evidence in Edinburgh for three weeks.
In this section of the inquiry there was much discussion about the behaviour, morality and personality of prominent politicians.
There were headlines about Nicola Sturgeon’s withering assessment of Boris Johnson as a “clown” and about Scottish Secretary Alister Jack’s blunt dismissal of Ms Sturgeon’s tears.
But does their behaviour actually matter for the purpose of the inquiry, which is not to apportion blame for failures in the previous pandemic, but to ensure the UK is better prepared for the next one?
It is unlikely that any of the politicians who gave evidence will be in charge during the next public health emergency so arguably Baroness Hallett’s task is to look at the underlying structures of government as they relate to emergency preparedness and response rather than to worry too much about who said what to whom.
For example, the inquiry has heard evidence about the idea that the UK government could have invoked the 2004 Civil Contingencies Act to take control of public health decisions on a UK-wide basis when the novel coronavirus first emerged.
Giving evidence in a previous module, Michael Gove – who as Cabinet Office minister during the pandemic was responsible for UK government liaison with the devolved administrations in Edinburgh, Cardiff and Belfast – said he believed such a move would have been “draconian.”
But he did suggest it might be worth considering whether some other mechanism should be used to enable the UK government to “override some of the independent decision-making” of the devolved administrations during a national emergency.
The framework of Scottish and Welsh devolution was designed by elected politicians after lengthy debates in the House of Commons with the authority of the public in Scotland and Wales who had voted for home rule in referendums in September 1997.
Since then, further powers have been devolved to the Scottish parliament, in part because the British establishment was rattled by persistently high levels of support for independence after voters in Scotland opted to remain in the UK by 55% to 45% in 2014.
Now, says Aileen McHarg, professor of public law and human rights at Durham University, “there is a perception that devolution is under attack”.
The idea that, a quarter of a century into the devolution era, Whitehall could simply take back control in an emergency is “completely unrealistic,” she argues, pointing out that the pandemic cut across myriad aspects of devolved life and governance — “not just health, but education, social work, justice, prisons,” and so on.
However, Prof McHarg adds that existing mechanisms for joint working between the UK government and the devolved administrations were problematic even before Covid arrived, describing them as “the real weak point of the devolution arrangements.”
Paul Cairney, professor of politics and public policy at Stirling University, agrees that existing “mechanisms for cooperation” between the UK and Scottish governments are inadequate.
“The agreements and procedures are neither legally binding nor useful in an emergency,” he points out in a 142-page report for the UK Covid inquiry in which he also describes “poor and worsening” relations between Conservative and SNP ministers in 2020.
That is a reminder that personalities can, in fact, matter in the operation and interpretation of underlying structures of government.
And it is a reminder that the inquiry’s ability to get to the full truth of how that process worked has been damaged by the destruction of potential evidence.
They give different reasons but the actions of Ms Sturgeon and Mr Jack amount to the same thing — both deleted messages which they knew a public inquiry would want to see.
This should not be a partisan point.
If it is a scandal for Ms Sturgeon to have done so, then surely it is a scandal for Mr Jack to have done so, and vice versa.
That is assuming the inquiry should have the right to see them at all.
There is an alternative, if perhaps unpopular, view about whether politicians of all stripes are actually entitled to more privacy than this type of investigation allows.
Not so many years ago many of the conversations now under scrutiny — sometimes casual, sometimes consequential, occasionally both — would have been murmured on the telephone or muttered in the corridor, leaving no trace but memory.
In an era when much informal interaction in society has shifted from verbal to written, can those elected to lead us, and those appointed to assist them, have the full and frank discussions necessary for good governance if they expect that every word of those discussions will eventually be made public?
Can teams forge good working relationships in dark times without the ability to relieve pressure by sharing a private joke?
If Baroness Hallett takes such a view, she has shown no sign of it in her occasional interventions, in which she has sounded unimpressed at some attempts to explain why messages are missing.
Of course we do not actually know the judge’s views about any of the evidence before her.
But we do know she faces a highly sensitive task in political as well as judicial terms.
Depending on her recommendations, Baroness Heather Hallett could yet become a significant player in the highly contentious, deeply complicated, and seemingly never ending debate about Scotland’s place in the UK.