Training and support for witnesses at the UK Covid Inquiry: FOI release

Information requested

1. Please supply a breakdown of Scottish Government spending and agreed spending with outside providers on supporting and preparing witnesses for the UK Covid Inquiry, including performance coaching and media training. This should include the name of the provider(s), the name of each person receiving the support and training, how much each person’s support and training cost, how many hours of support and training was provided for each person, and the dates on which it was provided.

2. Please also supply copies of all invoices, bills and and agreements for these services, whether payment has yet been made or not.

3. If the training and support was provided at the same time for both the UK and Scottish Covid inquiries, please say so.

Response

1. No Scottish Government, or former Scottish Government staff received coaching or media training before appearing in front of the UK Covid Inquiry.

The Scottish Government Legal Directorate (“SGLD”) and their outsourcing partner, Morton Fraser MacRoberts, on behalf of SGLD, have not provided any legal advice or coaching to witnesses.

The Faculty of Advocates’ Guide to Conduct makes clear that witnesses should not be coached in relation to any evidence they give. However, the prohibition does not extend to matters such as providing guidance about what a witness can expect while giving evidence, explaining what a Public
Inquiry is and how it will be run and discussion of issues likely to arise in evidence to allow witnesses to give full and accurate evidence without influencing the content of their evidence.

SGLD, Morton Fraser MacRoberts and officials within the Covid Inquiries Response Directorate provided appropriate levels of support to assist current and former Ministers and Officials to prepare for giving evidence to the UK Covid-19 Inquiry. This support included the provision of logistical support, providing reassurances about what to expect whilst giving evidence, explaining what a Public Inquiry is and how it will be run and discussing matters raised on behalf of the Inquiry to guide the witnesses’ own preparations for giving evidence without influencing the content of their evidence. The support provided by SGLD and Morton Fraser MacRoberts to witnesses was in accordance with all professional obligations.

The information held by the Scottish Government on costs associated with supporting and preparing witnesses, as identified by Morton Fraser MacRoberts, is provided below:

Witness
Audrey McDougall	£918
Gregor Smith	£2700
Jason Leitch	£3234
Jeanne Freeman	£2500
Ken Thomson	£1180

These charges include costs associated with reviewing documentation and evidence in preparation for meetings with witnesses to discuss matters highlighted by the Inquiry, coordination with SGLD with regards to organising and preparing for witness meetings and attendance at witness meetings.

We are unable to provide some of the information you have requested because exemptions under sections 17(1) (does not hold the information) and s33(1)(b) (substantial prejudice to commercial interests) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Section 17 (1)

The Scottish Government does not, as a matter of course, record the proportion of time spent providing advice or assistance on particular matters. It is therefore not possible to provide the total amount of time spent with each witness supported. Therefore, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not hold the information you have requested.

The dates of meetings with witnesses where Morton Fraser MacRoberts attended are given below:

Witness	Dates
Audrey MacDougall	05/01/2024
Gregor Smith	15/01/2024
Jason Leitch	11/01/2024
Jeane Freeman	15/01/2024
Ken Thomson	05/01/2024

Section 33(1)(b)

An exemption applies to the information requested about hours under section 33(1)(b) of FOISA (substantial prejudice to commercial interests). This exemption applies because disclosure of the hours would allow Morton Fraser MacRobert’s competitors to infer their pricing strategy. Therefore, would prejudice substantially the commercial interests of Morton Fraser MacRoberts. Disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Limited funding for independent legal representation for witnesses was also available from the Scottish Government. This funding was to enable witnesses to obtain independent legal support and advice not available from the Scottish Government Legal Department.

As of the date of this request being received (11 March 2024), the following witnesses have received this funding through TLT LLP.

Witness	Cost
Andrew Morris	£18,319.20
Sheila Rowan	£16,790.02
Stephen Reicher	£16,249.08

We are unable to provide some of the information you have requested because exemptions under sections 17(1) (does not hold the information) and s33(1)(b) (substantial prejudice to commercial interests) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Section 17 (1)

The Scottish Government does not hold a breakdown of dates when this independent support was provided to each witness. Therefore, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not hold the information you have requested.

Section 33(1)(b)

An exemption applies to the information requested about hours under section 33(1)(b) of FOISA (substantial prejudice to commercial interests). This exemption applies because disclosure of the hours would allow TLT’s competitors to infer their pricing strategy. Therefore, would prejudice substantially the commercial interests of TLT. Due to the small number of sessions, it would be possible to infer TLT’s pricing strategy. Disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

2. Attached to this email are three invoices from TLT.

Morton Fraser MacRoberts’ Invoices:

We are unable to provide the information you have requested because exemptions under sections 30(c) (otherwise prejudice effective conduct of public affairs), s33(1)(b) (substantial prejudice to commercial interests) and s38(1)(b) apply to that information. The reasons why these exemptions apply are explained below.

Section 30(c)

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because the work detailed in the invoices is related to requests received from the UK Covid-19 Inquiry. As the Inquiry is in the midst of its investigations, disclosure of this information would significantly harm and could adversely affect the Inquiry’s ability to carry out its specific, focused statutory duties, under the Inquiries Act 2005, in relation to public Inquiries.

The Inquiry has asked that requests made by them to individuals and organisations are not shared. They have taken the decision at this time not to publish any of their requests. Upholding the exemption, fulfils the Scottish Government's commitment to the independent Inquiry. Moreover, disclosing the content of these requests particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications of this type of issue in the future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to keep the inner workings of the UK Covid-19 Inquiry confidential while they conduct their investigation. Premature disclosure of the work requested by the Inquiry is likely to undermine the full and frank approach of the Inquiry, which in turn will undermine the quality of the UK Covid-19 Inquiry, which would not be in the public interest.

Section 33(1)(b)

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to the information contained within the invoices. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of Morton Fraser MacRoberts. Providing details about the number of hours and the total cost would allow competitors to infer Morton Fraser MacRobert’s pricing strategy.

This exemption has previously been upheld. In 2019, the framework agreement, between Morton Fraser and the Scottish Government was published on the Scottish Government website. Information related to pricing was redacted due to the impact it could have on Morton Fraser’s tenders. This information is not currently available within the public domain. Therefore, disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice Morton Fraser MacRoberts’ ability to submit competitive tenders and so could significantly harm their commercial business.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal data relating to third party) also applies to some of the information contained within the invoices because it is the personal data of a third party, i.e. the names of individuals. This information is identified in the table provided. Disclosing this information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

TLT’s Invoices:

We are unable to provide some of the information you have requested because exemptions under sections 30(c) (effective conduct of public affairs) s33(1)(b) (substantial prejudice to commercial interests) and s38(1) (third party personal data) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Section 30(c)

The Invoices from TLT are for February 2024 covering the costs incurred. An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because the work detailed in the invoices is related to requests received from the UK Covid-19 Inquiry. As the Inquiry is in the midst of its investigations, disclosure of this information would significantly harm and could adversely affect the Inquiry’s ability to carry out its specific, focused statutory duties, under the Inquiries Act 2005, in relation to public Inquiries.

The Inquiry has asked that requests made by them to individuals and organisations are not shared. They have taken the decision at this time not to publish any of their requests. Upholding the exemption, fulfils the Scottish Government's commitment to the independent Inquiry. Moreover, disclosing the content of these requests particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications of this type of issue in the future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to keep the inner workings of the UK Covid-19 Inquiry confidential while they conduct their investigation. Premature disclosure of the work requested by the Inquiry is likely to undermine the full and frank approach of the Inquiry, which in turn will undermine the quality of the UK Covid-19 Inquiry, which would not be in the public interest.

Section 33(1)(b)

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information contained within the invoices. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of TLT. Disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice TLT’s ability to submit competitive tenders and so could significantly harm their commercial business.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for
public money.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal data relating to third party) also applies to some of the information contained within the invoices because it is the personal data of a third party, i.e. the names of individuals. This information is identified in the table provided. Disclosing this information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

3. No Scottish Government witnesses have yet been called to give evidence to the Scottish Covid Inquiry and therefore no support was provided for witnesses regarding preparations for attendance at the Scottish Covid Inquiry.

Section 17 (1)

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not hold the information you have requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI 202400403578 - Information released - Attachments 1 - 3

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