Transcript of Module 2 Public Hearing on 13 December 2023

(10.00 am)

Procedural matters

Mr Keith: My Lady, before we start the process of hearing the oral submissions from the core participants, may I raise two procedural matters.

The first matter relates to the issue of the evening notes prepared by Sir Patrick Vallance. You will recall that during Module 2, during the oral hearing, you ruled on an interim basis that only individual extracts from the transcribed notes be put up on the screen, and thereby published.

On 7 December, you provisionally indicated to the core participants, through an email from Laura Taylor, that you were minded to adhere to the approach which you had adopted earlier in the hearing, which was that only the excerpts, the individual excerpts to which reference had been made, would be published.

That email was sent to the core participants, and they were given an opportunity to make submissions in response to your provisional minded position, but no submissions have been received in response, and therefore may I ask you to make that provisional finding final, and to direct that your ruling be published.

Lady Hallett: I do. Thank you very much.

Mr Keith: Secondly, in relation to the documents which are to be published, you of course are aware that some 750 documents have already been published on the Inquiry website in relation to Module 2. Of those 750 or so, around 270 were only published in part. Those in part published documents are to be published in full, and therefore they will go on to the website on Monday, once time has been allowed for them to be rechecked.

In addition, the Inquiry legal team has prepared a list of some 430 additional documents which it is proposed should be published. That list, about 700 in all, has been provided to the core participants and they’ve had an ability to indicate whether or not there are any additional documents that they would wish you to publish.

The position that has now been reached is this: that when they make their written submissions, they may only refer to documents which have been published. If there are any additional documents which they consider it necessary to reference in their written submissions, then we would ask that they identify them to the Inquiry by 8 January and, if necessary, further permission can be sought from you to have any additional documents published. Obviously only documents which have been published, and which have been published with your permission, can be referenced in their written submissions.

So may I have your permission to publish that list of documents for the purposes of Module 2?

Lady Hallett: You do. Thank you very much.

Mr Keith: Thank you.

Lady Hallett: Thank you.

I’m now going to hear from core participants in their closing submissions. Just to repeat something I’ve said this week already, but that as I think all the core participants present know, I appreciate the very tight timetable in preparing submissions and therefore I will also bear in mind the written submissions that core participants make when they’ve had greater time to reflect on all the evidence that’s been gathered and that we’ve heard.

So, Ms Morris, I think you’re starting.

Submissions on Behalf of the Covid-19 Bereaved Families for Justice UK by Ms Morris KC

Ms Morris: Thank you, my Lady.

My Lady, as you know, I make submissions on behalf of the Covid Bereaved Families for Justice UK.

My Lady, according to members of his own team, for Boris Johnson’s skillset, Covid was the wrong crisis. He was referred to as a trolley by his most senior adviser, oscillating from one position to another said his head of communications, and as having ostrich syndrome by one of his own ministers.

It is striking that these were not the words of a variety of people from within Number 10 and the Cabinet. They’re not my words, they’re not the families’ words, they’re not the words of his political adversaries; they are the words from people within Mr Johnson’s own team.

Regrettably for the bereaved families, and regrettably for the whole country, Covid exposures the weaknesses of Mr Johnson and the fractious nature of his dysfunctional administration. Contrary to some of the ill-informed articles in tabloids, this Inquiry is not examining the rights and wrongs of Brexit. It is not interested in the political colours of those in government at the time. It is certainly not going to be distracted by the soap opera, the language or internecine squabbles in various WhatsApps or other messaging. This is not a court of politics or a moral maze. It is, however, a tribunal of evidence.

The real question is whether the Prime Minister and the political leadership were decisive and proactive, or was their response at every turn reactive, too little, too late? Was the machinery of government, both its advisers and its officials, organised in a fit and efficient manner, working in lockstep with each other for the good of the country?

For the thousands that we represent, Mr Johnson is the reason that many of them are here. He was the captain of HMS United Kingdom, pretending that the iceberg it was steaming towards was a figment of the imagination. All the while his lieutenant, Matt Hancock, was conducting the orchestra to play on deck, telling all that everything was fine and plans were in place. Unfortunately, the reality was the opposite, the iceberg was only too real and it was the plans which were a figment of the imagination.

In his evidence, Mr Johnson acknowledged that mistakes had been made and he said that as the PM at the time, he accepted personal responsibility for them. Anyone watching might have thought this was a laudable approach until Mr Keith asked him the question that all of us who’d actually read Mr Johnson’s witness statement were thinking: what mistakes was he actually saying sorry for?

It is, of course, a matter for you, but you may think that through his whole evidence, Mr Johnson hardly acknowledged any failures. If that is your view, then his apologies were hollow and, you may think, designed to demonstrate a humility, a previously undiagnosed characteristic.

Regarding the early stages of the response, there are at least three key features to the Johnson book of excuses.

First, the UK actually didn’t do as badly as some had predicted. Second, if only the UK had been able to recognise the danger of the virus as it came towards us, in particular asymptomatic transmission, then we could have ramped up preparation straightaway. And third, that we were taken by surprise at how far along the curve we were in early March.

We emphatically reject all three of these propositions.

On a separate but important point, whilst accepting that it will be the subject of another module, we also disagree with the narrative that both Mr Johnson and Mr Hancock promoted that the NHS was not overwhelmed. We say, my Lady, that you must look at the overall impact on the whole healthcare system in future modules, including who it could and could not treat, and this proposition must be examined in detail.

But returning back to the three propositions.

First, the Inquiry should be inherently wary of a “we didn’t do too badly” narrative, which can only be a basis for complacency going forward. There is no foundation whatsoever for the narrative that, despite the criticisms and predictions, the UK did okay. This bold sweeping assertion is remarkable for one thing: it has no factual basis. If there was a basis for it, no doubt Mr Johnson and his team of lawyers would have exhibited the evidence. They have not.

The Inquiry itself has sought the best and most objective international comparison evidence, and published it together with a document carefully setting out the basis for the statistics. It shows the UK did very poorly against all but one comparable European country. This was analysis based on age-standardised excess death mortality rates set against a five-year average, a carefully thought through metric. The data came from the ONS, not some think tank, poll or politically charged body or expert. The European data came from Eurostat, widely recognised as reliably standardised and quality assured across the continent. The analysis that the UK was close to the bottom in class does not come from the families but from the data itself, underlined by the commentary of reputable bodies, including the King’s Fund.

Whereas the evidence of the global picture is undoubtedly less robust than the European one because of differences in data, again, reputable and properly evidenced studies from the Johns Hopkins institute of medicine, amongst others, paint a similar picture of the UK doing very badly indeed against global comparisons. The response of Mr Johnson was that this evidence didn’t stack up. That is for you to decide, my Lady, but we respectfully suggest it will not be an issue which will detain you for too long.

Mr Johnson also referred to the fact that the UK had its own unique characteristics. That is not in dispute. We have commented on its island geography, its wealth, its advanced healthcare and public health systems, and one might think these were significant advantages, but Mr Johnson said the UK has a higher population density and more older people than many other countries. As a headline, that is so, although it is an English-centric view so far as population density is concerned, as it varies considerably across Northern Ireland, Wales and Scotland.

We do not doubt the population density is a very relevant issue but it’s by no means one which leads to an inevitable higher mortality rate. We have already raised the example of South Korea, a country with a population density almost twice as high and with more older people but a mortality rate a quarter of the UK. Germany has a similar population density and higher proportion of older people but a far lower Covid mortality rate. Singapore is a much denser population centre, with similar population age profile, but again had a far lower Covid mortality.

Mr Johnson continued to deflect away from awkward facts and evidence by hand-wringing about how it had all been different, if only we could have seen the problem coming over the horizon, and in particular asymptomatic transmission, and telling us that the real problem was that no one knew where the UK was on the curve until we were into March.

Once again we say that reality, awkward things called facts and evidence, get in the way of his narrative.

The reality was that in January and February 2020 he was telling those that would listen that this was a false alarm and that the overreaction would damage the economy. Eminent scientists were under no such delusion. By early January the UK had designated Covid as a high-consequence infectious disease. Professor Jonathan Van-Tam told us that by 16 January his instinct was telling him that this would turn out to be a dangerous pandemic. Later in January clear documentary evidence shows us that Professors Farrar, Woolhouse and Ferguson were sounding the alarm, as were Professors Whitty and Vallance, who were, of course, at the centre of advice to government.

There was evidence from China, confirmed by the diplomatic telegram we’ve seen, as early as 26 January, that there was confirmed asymptomatic transmission, human to human, not anecdotal evidence but confirmed from the director of – the minister of health. Further reports from Germany around the same time confirmed that picture, followed only days later by the Diamond Princess mass outbreak in early Feb.

Contrary to Mr Johnson’s assertion, crucial matters like asymptomatic transmission were identified as early as January. The problem was that the warnings were not heeded.

By this time some things had been done, COBR had been stood up, as had SAGE; but without leadership, too little followed, and I highlight three central matters: plans, PPE and tests.

Once the possibility of a pandemic arose by mid-January at the latest, one might have thought that anyone with an interest in an emerging civil emergency which would include the Prime Minister, the Health Secretary, the Civil Contingencies Secretariat, the CMO, the GCSA, would instinctively reach for the plans, the pandemic playbook. For the avoidance of doubt, my Lady, I touch lightly on the fact that the absence of pandemic planning should have been well known to all, because of the evidence you’ve heard in Module 1, but from early January why was the absence of plans seemingly not a big deal? The only real evidence of this is the contact between Mr Cummings and Mr Hancock where the Health Secretary assures the PM’s most senior adviser that everything’s in order and the plans have all been reviewed.

Irrespective of whether the view was that the pandemic was on its way or that it was 50/50 or that it was likely to be a false alarm, it is beyond argument that this was the moment to recognise that there was a major hole in planning that needed to be filled immediately, but precious little followed.

Where was the attention to increasing the bed capacity and the availability of healthcare staff or even to scope what wasn’t and was in place in social care? We know from Helen Whately, Minister for Social Care, that only in March did she recognise the lack of infection control plans in care homes.

What was done regarding PPE? It is crystal clear that as of January there were insufficient stockpiles of PPE. No one seems to have known what there was and where. There also seems to have been scant understanding of need, in particular in the care sector, and no real distribution or management plan.

By mid-March PPE requirements for doctors and nurses and cleaners and others working in Covid wards were downgraded.

I repeat, downgraded.

We say the only reason for this was the lack of proper PPE. Why? Partly because of the failure to stockpile and plan for management during a crisis, and partly because of a failure to surge manufacturing or procurement capacity once the pandemic was on the horizon.

We’ve all seen the headlines in early April 2020 with the BBC, The Daily Telegraph, covering shocking accounts of frontline healthcare workers making their own protective equipment from bin liners.

Then there’s a story of tests. UK scientists had devised a Covid test admirably early in January. The problem was not the UK did not have a test, it was that our government failed to surge manufacture or procure anywhere near the required capacity until much later in the pandemic. Producing or sourcing tests was no doubt less than straightforward, but it was an entirely predictable problem. Some other countries did so. By mid-March South Korea had conducted five times the number of tests undertaken in the UK.

From the beginning of January the failure to address what Mr Hancock described as a “woefully inadequate” preparedness and jump start a rapid emergency response was primarily a failure of leadership. But by early March, instead of leading the catch-up, Mr Johnson was doing a photo shoot at the Royal Free Hospital shaking hands with patients with Covid and telling the press he was proud to have done so. By this point we could all see on the television parts of Italy were being overwhelmed by the virus, 11 municipalities had been quarantined by order of the government on 23 February, yet our government floundered: already out of date action plans but little meaningful action. Mr Johnson’s point that the UK was taken by surprise by how far along the curve we were by early March has to be seen against that background.

Without testing capacity it was always going to be difficult to understand where things were, but the rapid take-off of exponential growth was not an unknown, far from it. The PM did not need his advisers to explain exponential growth, he did not need to understand graphs, he just needed to turn the television on.

And so we reach the first lockdown, 23 March. There seems to be almost unanimity amongst witnesses that the first lockdown could not have been avoided. Equally, it should have been sooner. Mr Hancock says the beginning of March, Patrick Vallance said the lockdown was at least a week too late. So the message, we say, is clear: it should have been earlier and harder.

I say unanimity amongst witnesses because it will not have escaped your attention, my Lady, that there have been a number of tabloid articles and questions by some politicians and other commentators as to whether lockdowns were necessary at all. Apparently they were anathema to some Halcyon days of British libertarian values and the cost was too high.

We have no doubt that you’ll have no hesitation in following the evidence and tuning out from the background noise outside of these walls. Where evidence has questioned the need for or the efficiency of lockdowns, it has been carefully dealt with. You’ll recall the dismantling of the Great Barrington Declaration hypothesis by Professor Whitty, the idea that the vulnerable could be shielded whilst the rest of us got on with life as normal. Quite how the vulnerable were to be defined and identified was the first problem but shielding them whilst the virus circulated amongst the rest of the population would have been impossible.

There is nothing antilibertarian about temporary emergency public health measures to save lives, any more than there is anything authoritarian about the binding legal requirement on the state to do everything reasonably possible to protect life pursuant to Article 2 of the European Convention of Human Rights. Sorry to disappoint those who would cast lockdowns as part of a culture war, but the Human Rights Act and English common law are both agreed on this.

The point about earlier and harder lockdowns is that they hit the curve at a lower point. It is quicker and easier to flatten the curve before it is out of control. Quicker and easier means less economic damage, less damage to our children, less risk for those escaping domestic violence, less mental health impact, less disproportionate impact on ethnic minority communities, the disabled and the most economically disadvantaged.

The fallacy of the lockdown argument is that there is some balance to be struck between public health damage and the economy and other societal damage. Protecting lives protected the economy and minimised other societal damage. Protecting the economy required decisive, swift action, not standing back. Protecting the economy goes hand in hand with a healthy workforce, and that requires first rate health services with resilience when there is an emergency.

I’ve raised the background noise of ideological commentaries outside the Inquiry because it’s been upsetting to those I represent and needed to be addressed as such, however it links to my next point. No one considered lockdown a cure and any informed person would know that a further wave or waves would follow. What came after any lockdown was therefore crucial. At some point the curve would be lowered to a point where it was proportionate to ease restrictions. Decisions would be taken to ease back some of the semblance of normality whilst careful monitoring and ongoing measures would be needed to keep the curve low. Escalation of measures was a probability if not a certainty.

What in fact happened was further dither and delay, disconnected from the science, and with the PM and his administration still looking over their shoulders to the ideological doubters. Having suggested that they first followed the science with respect to measures up and including the first lockdown, Mr Johnson and Mr Sunak then embarked on Eat Out to Help Out.

Having successfully, if belatedly, reduced the infection rate, this policy provided state subsidies for people to gather for long periods and in closed spaces. Despite the assertion from Mr Johnson that it had been considered and advanced by Professors Whitty and Vallance, that was plainly not the case. Again, there was almost unanimity that Eat Out to Help Out was a terrible idea and one which witness after witness would have counselled against, if only they’d been asked.

Although it’s difficult to evidence the effect of Eat Out to Help Out, Patrick Vallance was able to say that it must have increased infection rates and highly likely to have increased the number of deaths.

It is clear from the documents that the government realised just how much worse the figures were getting over the summer. You’ll remember that Patrick Vallance diary entry where he recalls Mr Johnson lamenting that things were getting back to the “grim” days of March, recognising that things had to be done, recognising and exclaiming in colourful terms that he was going to have to go against a certain section of the media. It might be thought that this was the sort of decisive leadership that had been absent so far. That was 11 September.

Ten days later, SAGE 58 recommended a circuit-breaker as part of a connected package of measures to reverse the exponential rise in cases. But the dynamic realisation of 11 September had evaporated by then. The science was not followed. Instead, the government embarked upon a series of tiering measures which were doomed to fail and did so.

What was most striking about the tiers system was that the government did not seek advice from SAGE or anyone else about it. What this demonstrates, my Lady, is that even in a face of the realisation of the dire situation developing over summer 2020, Mr Johnson and his government floundered in the face of ideological opposition and ignored scientific advice. The result was a colossal loss of life in a second wave and a longer and more damaging second lockdown.

I want to pick up on three more threads: following the science; the failure to mitigate foreseeable disproportionate impacts; and governance. There is also a common golden thread, a lack of proper systems in place, crucial for when the next storm gathers.

On the evidence, it is clear that an eclectic mix of eminent and concerned scientists were raising the alarm as the pandemic emerged. It is equally clear that many eminent scientists came together as volunteers in the pop-up committee that was SAGE and did their level best. This is not an attack on any of the scientists. We are well equipped with eminent experts in all four corners of the United Kingdom; what was missing was their organisation.

In Module 1 we’ve asked to you conclude and recommend that the UK should have a standing scientific committee on pandemics; not an original idea as the Scottish Government already has one set up. A standing committee would bring together relevant scientific minds in peacetime. It would be able to spot existing major lacunae, such as the fact that there wasn’t any pandemic plan, such as a lack of resilience in the health and social care sector, and no excess bed capacity and hence no ability to meet a public health emergency.

A standing committee would be able to gather learning from other parts of the world about their experiences of other diseases. It would be able to advise on what was needed for surge manufacturing, sourcing of tests, lab analysis and PPE. It would be able to gather advance thinking on NPIs, their efficacy and how they might work together in different scenarios. Instead what we had was a pop-up, a standing start a month into the emergency. How is that the best use of our expertise?

Without the joined-up learning that a standing committee would bring, incredible responsibility is placed upon key advisers close to government, and no doubt pressure is placed upon them. Professor Whitty accepts that asymptomatic transmission was known from early on, but there were doubts as to its impact. He thought border controls and screening generally did not work, and stopping mass gatherings would not make of difference. And above all he advised not to take policy decisions too early in case there was behavioural fatigue.

Would a dedicated standing committee have taken such a cautious approach or would it have taken asymptomatic transmission as a red flag until or unless it was proven less forceable? Would it have counselled hesitation or would it have urged to go early and go hard on NPIs because it would have had the learning to understand that imperative before the exponential explosion rendered them less effective? Would it have taken a nuanced approach to implementing border measures and restricting mass gatherings, as did other countries who achieved more successful outcomes, rather than serially rejecting them as ineffective? Would a standing committee have pushed hard in peacetime, and indeed at the start of the emergency, for testing capacity and for a fully functioning TTI scheme? We think so.

The lack of testing capacity meant that Professor Whitty and others were flying blind on where we were on the curve. Without resilience and tests, scientists had to go along with discharging thousands of older people from hospitals to the care sector without proper infection control. Without PPE our brave care workers and key workers, including doctors, nurses and cleaners, were left shamefully unprotected. Did the lack of PPE influence scientists to downgrade Covid in mid-March from an HCID so that doctors and others could be asked to use paper masks on Covid wards rather than respirators? How else can one explain the fact that in the eye of storm, as the infection rate exploded in mid-March, the fifth worst pandemic in history, ranked by order of human deaths, was now not considered a high-consequence disease.

We are not criticising the scientists here. What was absent was not expertise but organised standing learning and evidenced contingency measures to respond to various pandemic characteristics.

The Inquiry has heard a great deal of expert evidence regarding disproportionate impact and structural discrimination of various kinds. All diseases affect people with different characteristics differently. It is obvious that this would be the case with a pathogen such as Covid. Some of those differences will not be apparent until the path of the disease is observed. However, many disproportionate impacts are predictable to a significant degree and therefore foreseeable.

The devastating and disproportionate effect of Covid on people living with various disabilities, including learning difficulties, autism and Down’s, for example, was entirely foreseeable. Disproportionate impact on various black and ethnic minority communities was predictable too, but the evidence shows that little or no thinking was given to these issues until data became available quite late in the pandemic. Why was the Ethnicity Subgroup of SAGE not formed until late August 2020? Why was no apparent consideration given to the provision of racially, culturally or gender-appropriate PPE? Was it not obvious that structural issues meant that key frontline workforces are disproportionate numbers from particular ethnic groups and that needed to be addressed ahead of time?

What was particularly upsetting for our families was evidence from an Equalities minister, Kemi Badenoch, who seemed to both minimise structural race issues but also suggest that addressing disproportionate impact was unlawful under the legislation.

To remind you of just two pieces was her evidence, Ms Badenoch suggested that the evidence has shown that being an ethnic minority was not the cause of being disproportionately impacted, it correlated with what the causes were, the comorbidities. That was absolutely not the evidence. Disproportionate impact was related to structural issues such as the fact that black and ethnic minority workers make up a huge proportion of the health service and care sectors and transport and the gig economy, all high-risk.

Later, Ms Badenoch chose an example of Pakistani taxi drivers and that it would be wrong to provide measures aimed at alleviating their risks because there were also white drivers and targeted measures were unlawful, she said. No one was suggesting that black workers should be favoured over white workers, but measures aimed at addressing disproportionate impact are plainly not favouring persons of one background over another. And equally plainly, they were not unlawful in the way suggested.

The failure to address disproportionate impacts was, in our submission, itself an aspect of structural discrimination and the views of an Equalities minister appears to triumph ideology over reality and the law.

My Lady, in terms of governance, the evidence exposed the shortcomings of the workings of central government. Below the ministerial level we have seen the interface of the political officials and civil servants. In many, perhaps most, administrations this may work perfectly well, with clear demarcation of roles and due deference between them. However, we have witnessed what happens when that is absent, with an avowed disrupter brought into the centre.

He who Mr Johnson could not bring himself to name in evidence was given almost unfettered power and used it – or, more accurately, misused it. Undeniably, Dominic Cummings and others around him were allowed to create a toxic atmosphere, white and male, which scared off competent others and created a dysfunctionality we have seen through countless messages stirring up internecine conflict. Add to that a culture of indifference to abiding by their own regulations, and the evidence exposes the Johnson administration to have been rotten to its core.

How to put that right is another matter. Professionalising a system of SpAds and political appointees is more difficult still, as it performs part of the democratic remit of governance. But there are potential measures which the Inquiry may consider, such as a transparent system of reviewing diversity and culture at the heart of government, which may be appropriate going forward.

My Lady, you will know that I have made it through this short submission without reference to the detail of the messaging or the language. Ingenious devices have been advanced by many as to why the Inquiry should take a circumspect view of WhatsApps and emails and late night notes. Whilst accepting that they have a different status to formal meeting minutes, we reject all attempts to diminish their importance. This evidence is not ephemeral, as has been suggested. Sounding off some of them might be. More brutal due to the brevity of WhatsApp character limit, maybe. But these are generally invaluable contemporaneous evidence which every forensic process seeks.

My Lady, if the failings of Mr Johnson, Mr Sunak, Mr Hancock, Mr Cummings and others are laid bare by their own unguarded comments, they have only themselves to blame.

Those are my submissions.

Lady Hallett: Thank you very much indeed, Ms Morris.

Ms Campbell.

Submissions on Behalf of Northern Ireland Covid-19 Bereaved Families for Justice by Ms Campbell KC

Ms Campbell: The most important duty of government is to protect human life, so said the former Prime Minister to you in his evidence. At the end of this module, my Lady, our clients reasonably challenge the contention that firstly this principle remained at the heart of all government decision-making and, secondly, that enough was done.

You know that those we represent are concerned that the devolved issues in general and Northern Ireland in particular were a mere afterthought on the part of the UK Government. In our oral opening submissions we said that this was significant, as it meant that Northern Ireland did not have a voice in decisions that were of fundamental importance to us. We noted that this was crucial in assessing the extent to which Northern Ireland was hindered in its ability to reach informed decisions, either despite or because of the reliance on the UK Government response.

In this context, it may in fact be the evidence that you haven’t heard which speaks the loudest. It is striking that in relation to the big decisions or when considering essential matters for a response, not only were Northern Ireland decision-makers not in the room, but there is no evidence before you of any consideration of the people of Northern Ireland and the context of the north of Ireland in the decisions that were made.

By way of example, there was no Northern Ireland representative on SAGE at a crucial early stage of the pandemic. You know that, and you’ve heard it before. The evidence now tells us that scientists from the devolved administrations were only routinely invited from early March, however we also know that there’s no evidence of any Northern Irish participation on SAGE until 28 March, or, according to one witness, until early April.

That in itself is a disconnect that requires an explanation, and it may be that you’re able to gather further explanation in the course of Module 2C, but one thing does seem clear: there was a remarkable lack of curiosity on SAGE or in the UK Government about why no scientists from the north of Ireland had turned up, had taken up the invitation. There is no query about where the north of Ireland representative was, noting the importance of the decisions for the jurisdiction, and the need for their input, nor did anyone in the UK Government receiving SAGE minutes query why there was no attendance from a scientist from Northern Ireland. There is no concern expressed that scientists from the devolved administrations may add value by identifying important local distinctions which require consideration. There’s just silence on this issue.

And of course this was during the period when there were crucial decisions being considered by SAGE that would, at least in part, determine the course of the pandemic response. Advice about whether to take measures at borders, advice about mass gatherings, identification of limited capacity for test and trace. We are told by Professor Sir Chris Whitty and others that the lack of a Northern Irish participant was unfortunate because, when a representative from the devolved administration did attend, this benefitted discussions.

But the very lack of consideration of why there was no one in attendance during this critical period is striking. It just doesn’t seem to have entered anyone’s thinking, and in any event, there’s no mention of any consideration before you in this module.

That absence was significant. The silence speaks volumes. At this crucial part of the pandemic, SAGE, like the UK Government, was taking what appeared to be a particularly Anglo-centric approach. You’ve heard, for example, about how the warning bells were sounded in the UK Government about failures in test and trace. By mid-February SAGE had identified that capacity for community testing would run out in two to four weeks, and that is in fact what happened. But perhaps more significantly for those that we represent, what you have not seen or heard is anyone identifying that at that time, despite having a significantly lower prevalence of the virus at that stage in the north, Northern Ireland did not even have a full test and trace system in operation. They had a pilot scheme. There’s no expression of concern about this, or even mention of it in the early SAGE minutes. There’s no evidence of any questions being directed to SAGE by UK Government politicians, by the territorial offices, by civil servants or political advisers, asking whether the position on testing was the same for all the devolved administrations. You heard no testimony for any witness who said “This was a matter of concern to me, I raised it at the highest or indeed at any level”. Again, it didn’t enter consideration.

Similarly, with respect to NPIs, modelling informed decisions taken and measures implemented. However, it’s not clear that there was any modelling done on behalf of the north of Ireland during the pandemic, certainly not on the evidence that you’ve heard so far. Professor Medley, the co-chair of SPI-M-O, stated to you in evidence:

“The nation I didn’t really have [any] involvement with at all is Northern Ireland. I think right at the beginning or early in the epidemic it had been suggested that I had a call with the Chief Medical Officer for Northern Ireland, but that I don’t think ever transpired. So, yeah … I’m not very proud of that, it didn’t happen.

“… I didn’t have sight of what Northern Ireland were doing in terms of modelling.”

These omissions and this failure to consider devolved issues at all is significant. This Inquiry is concerned with the response of the UK Government at this stage, and one purpose is to ensure that any mistakes made may be avoided in future. In one sense, it may be that the process rather than the outcome is the most significant in order to achieve that goal. It can be accepted, of course, that for an unprecedented and deadly pandemic even for those acting in good faith and professionally, mistakes can be made. What is more important is that processes are adopted that can minimise the scope for such mistakes. As you know, this is reflected, for example, in the requirements of Article 2 of the European Convention of Human Rights, protecting the right to life, which, as you well know, imposes an obligation of means, not an obligation of results. What is important is that the mechanisms which protect life are in place. For Northern Ireland, during a pandemic of this nature, we submit that this should have meant that decision-making structures were adopted and adapted to take into account and place value on the views of our local representatives, locally elected leaders, to ensure that their concerns could be factored into UK decision-making to ensure that they were properly engaged in a process of consultation and not simply dictated to.

As with SAGE, concerns about the approach of the UK Government arise. You’ve heard that there was a lack of central government engagement with the devolved administrations, and you know about the move from COBR to the 8.15 meetings, the recommendation of the use of the Joint Ministerial Committee and the fact that no JMCs in fact took place within a relevant period. You know about the communications via Mr Gove. Denying that there were failures in communications, Mr Gove termed it a diminution of contact. In one sense the title matters little. This was an unprecedented pandemic. There was a need for co-ordination across all administrations and the involvement of DA leaders in decisions with relevance to their electorate. Far from a halt or diminution in contact, there should have been a maintenance or increase in regular and systemic and meaningful contact at the highest levels, and the involvement of the DA leaders in decision-making.

This approach was particularly concerning as it appears this lack of engagement was not taken for any public health reason, or any desire to ensure that the best response was taken to the pandemic for the citizens of the devolved nations; rather, the motivation appears to have been starkly political, or, worse still, personal. This was apparent from the read-out of a meeting between the territorial offices and the Chancellor of the Duchy of Lancaster. The Secretary of State Northern Ireland read-out of that call identified a number of reasons why the Secretary of State and his equivalent in Wales and Scotland did not think a weekly meeting with the DAs was necessary. The concern is more about political handling than pandemic response. It is in fact striking from that read-out that there are no concerns identified about the lack of an NI test and trace system, about the legitimate need to look to the south of Ireland’s pandemic response, or indeed about any substantive issue in relation to Northern Ireland’s pandemic response. The concerns are purely political. The goal is control.

A further justification advanced by the Westminster government for seeking to limit the involvement of the DAs in decision-making is leaks. It’s not in fact clear whether this was the case in practice, but even if there were leaks, the question arises: who do leaks pose a problem for? Is this properly a public health reason to exclude those with local knowledge from the decision-making process in a pandemic? Surely, my Lady, not.

The exclusion of the DAs from decision-making for fear of apparent leaks amounts to a prioritisation of political optics over public health considerations and the real need to protect the lives of the citizens in particular of Northern Ireland.

You heard about mixed messaging. Lord Lister, a key adviser to the then Prime Minister, was asked by your counsel what the issues was with Scotland adopting a different approach, as of course they were entitled to do. He identified that one concern was that mixed messages were causing confusion. When pressed, he identified that:

“… there was a strong view from the media side at Number 10 … that you had to have one simple message that goes to everybody.”

We note that this strong view did not emanate from the CSA, the CMO, SAGE or even SPI-B. Rather, the media side at Number 10. That suggests that this was not a decision based on the welfare of the citizens of devolved regions, it was, rather, a political issue. That is a problem in itself.

However, there’s a more fundamental problem with that answer and the reasoning underpinning it for those we represent. This was expressed to you very clearly by Catriona Myles in her evidence to you when she said:

“… there’s no denying [it] – [it] doesn’t matter what political persuasion you are, we share an island with the Republic of Ireland and … rules and legislation set out in Westminster didn’t really allow for the fact that we had a land border … that [means] that in some cases … for example, the Derry and Donegal border, you could have a house on one side of a fence having to abide by one set of rules and legislations and yet the neighbours on the other side of that fence had a completely different set of rules. And then … you had people that were moving through the two different regions for work purposes, social purposes, et cetera. It got so confusing at times for people, it was very hard for normal people to work out if they were abiding by the rules, [and] which rules they were abiding by.”

My Lady, you may reasonably conclude that a one size fits all solution dictated by Westminster to the DAs does not work. In the context of the north of Ireland in particular, this should have been obvious to and factored into Westminster decision-making. In fact, the evidence before you suggests that this basic reality is still today not appreciated by those in power in Westminster.

And of course it’s not just ordinary people who were aware of this reality of life in Northern Ireland. This is not just a post hoc concern raised by those we represent. Dr Michael McBride, the Northern Ireland CMO, messaged Chris Whitty, and indeed all of the devolved CMOs on 10 March 2020, to emphasise that what was important to him was not only a UK-wide agreement on time, but also north-south consistency of the island of Ireland. Our concern is that there is no evidence of any significant step taken by those in central government to address this concern, no evidence before you in oral or written testimony. It’s not just an afterthought. It doesn’t appear to have received significant thought at all.

One demonstration of that is that no more than ten days after that message from Dr McBride to his fellow CMOs, you have evidence that on 20 March 2020, in a phone call between Simon Coveney, the Irish Tánaiste, and the Foreign Secretary, Mr Coveney suggested holding a British-Irish intergovernmental conference involving all administrations, which would be important to ensure that not only north-south issues were discussed but also east-west issues, that five-nation two-island approach that you heard of in Module 1. The Foreign Secretary agreed with Mr Coveney and suggested that it would be chaired by himself or the CDL and said that it was a good idea. Despite this there was no such conference held that month, in March 2020, or the following month or indeed throughout 2020. In fact there is no evidence of whether this received further consideration at all within Westminster beyond the initial acknowledgement that it was a good idea.

Again, the absence of evidence is telling.

My Lady, you have heard with particular reference to Scotland about concerns in Westminster that the DAs would introduce measures sooner than the UK central government or ease restrictions later than central government, purely, it’s suggested, for the sake of being different. When that justification is scrutinised, it’s apparent that the objections of Westminster were again political.

This is perhaps best exemplified in the witness statement of Boris Johnson. The complaint that he chose to give prominence to, in that no doubt carefully crafted statement which we only received in August 2023, was that Scotland announced limitations on mass gatherings before the UK central government introduced their own restrictions. What is striking about this being used as the most prominent complaint about divergence is that everyone now seems to accept that one aspect of the UK response which should have differed is that limitations on mass gatherings should have been introduced earlier. That is now the position of Sir Chris Whitty, Sir Patrick Vallance, and even Boris Johnson, who, when asked by your counsel whether mass gatherings should have been stopped before the Cheltenham Races or the Liverpool-Atlético Madrid match, he said:

“… with hindsight … we should perhaps have done that, and I agree with you.”

So Mr Johnson’s criticism of the Scottish administration is that they sought to impose a public health measure earlier than the United Kingdom Government in circumstances where he now accepts that this step should have been taken earlier and where expert evidence suggests that earlier action saves lives. Criticism of the Scottish administration’s decision is not, therefore, consistent with public health concern for the people of Scotland or any of the devolved nations.

Even apart from that example, in the evidence before you, there is no criticism of any divergent step taken by any DA on the basis that it resulted or was likely to result in a worse outcome for their citizens or that it failed to sufficiently protect lives. Not a single line of a witness statement or sentence of oral testimony identifies that as an issue. Those who identified divergence as a problem were concerned with the concept of divergence itself. The concern was political, not protective.

We cite the example of mass gatherings not because it’s the most important decision for pandemic response, although it was important and it does have particular consideration for Northern Ireland, to which we will return in our written submissions, but because considering how these decisions were made and why divergence has been so criticised strongly points away from any recommendation being made by this Inquiry that there should have been a single UK approach dictated by central government to the devolved administrations crafted without the benefit of local expertise, implemented without taking into account local distinctions, or indeed the scientific reality including that which existed by the physical separation of the island of Ireland.

Michael Gove agreed in his oral evidence that there were bound to be differences between the DAs and central government in terms of a common approach, and that thoughts to the contrary were unrealistic. We agree, and we suggest that this Inquiry should also agree.

It is perhaps this reality which has caused such difficulty for those who advocate the single UK approach as they struggle to square what is essentially a political view with the geographic and scientific reality. In what could be considered remarkable but at the same time unsurprising, this seems to have resulted in Mr Johnson in his evidence to the Inquiry flip-flopping on what is the best approach to govern relationships between central government and the devolved nations. In his statement – as I say, signed only in August – he decidedly advocates the use of a pan-UK Civil Contingencies Act so as to “bind the [UK] together”. In his oral evidence he vacillated, offering to Mr Keith:

“… I’ve got an open mind. I see a lot of my colleagues are against the Civil Contingencies Act. I’m happy to defer to them on that point.”

Under questioning on behalf of those whom we represent, Mr Johnson appeared to accept the force in the view that the pandemic response must allow for regional flexibility and divergence, taking into account that Northern Ireland forms part of a separate epidemiological unit, though adding that, with respect to the DAs, the more unified we can be the better.

It seems that my Lady has an example of Mr Johnson flip-flopping in real time, taking one position in his witness statement provided in August, changing his mind under questions from Mr Keith, and finally reaching a position that is not quite clear.

We don’t identify this to make any ad hominem attack. The significant point is that it again suggests a lack of proper consideration of how the desire for a consistent UK message delivered by central government is compatible with scientific reality and the fact that different approaches may be necessary in different jurisdictions, a reality that Mr Johnson also appeared to accept.

That conclusion finds further reinforcement from his explanation of why he opposed regular meetings with the DA ministers. In his witness statement he asserted decisively that this would be “optically wrong”, it was a deliberate decision because it would give the impression that “the UK were a kind of mini EU of four nations [as if] we were meeting as a ‘council’ in a federal structure”.

It will be apparent to my Lady that this view is not based on the needs of citizens responding to an unprecedented pandemic, rather on political optics. We suggest that this focus was and remains misplaced. Mr Johnson continues in his statement:

“… some will say I should have simply made more of an effort, using all of my powers of persuasion, to get the DAs to stick to the UK line. I disagree.”

However, with the characteristic flip-flopping, some call it “trolleying”, of which you have heard, he volunteered to Mr Keith in evidence:

“If I had my time again, with hindsight, I think [this is] an area where I would have tried – even though I was very pushed for time, I would have tried to spend more time with the DAs and really tried to bring them with me.”

It’s concerning for those that we represent that not only were decisions made in relation to devolved administrations for the wrong reasons in 2020 and 2021, over two years on Mr Johnson has yet to agree with himself about what the correct approach would have been, or should have been.

My Lady, briefly dealing with Partygate. The focus on optics also appears to have affected the government’s response to the revelations of parties in Number 10. You heard the heartfelt testimony from Ms Myles, who described how her funny and articulate father would die alone in December 2020 while in Westminster there were Christmas parties.

You know that she and her family are not alone in that pain.

My Lady, you have heard the inadequacy of Mr Johnson’s response to that evidence. It was unconvincingly suggested to you and to the public that he could not have stopped the parties, and that a single text message sent in December 2021 demonstrated that he had cared about breaches of the rules by his own administration. What is striking about that message is, again, the concern is optics:

“… we should have thought about how it would look …”

There is no concern expressed for the relatives of those who died alone, in many cases confused, with enforced separation from their family, denied dignity in death while those making the rules engaged in bring your own booze parties, with suitcases full of purchased alcohol. Nor indeed is there any concern about the devastating impact it would have in public confidence in governance.

A word on hindsight before I conclude. There is an important point to be made about the significance of processes and factors that this Inquiry is considering. One concern for those that we represent is that for many of the big decisions, the evidence at the time identified that the approach was wrong or ill considered, but for some reason this was not properly identified or acted upon. We will return to this in more detail in our written submissions, but there are numerous examples to support that hindsight is no defence: TTI, mass gatherings, asymptomatic transmission, and the appreciation of what was happening in Italy in February and early March 2020.

Hindsight, my Lady, is no defence for the mistakes in relation to many of the key decisions in the pandemic. That is particularly, of course, the case for the second lockdown, when the administration seems to have invented time travel, given that they were making the same mistakes all over again.

We make these points not to criticise those decision-makers who were acting in good faith, but to dispel the notion that these decisions can only be considered flawed in hindsight. That is not supported by the evidence, and we respectfully suggest that this Inquiry should make clear in its findings that hindsight is no excuse and that foresight should have been present.

I’d like to finish, my Lady, with the words of Ms Myles. This Inquiry has an unenviable task and we feel a great responsibility to those we represent who are, as Ms Myles noted, “a group who never thought we would … come together”. She has made clear her concern, which is a shared concern for those we represent. She says:

“We have a shared loss. Unfortunately shared trauma.

“… it would be a travesty if what happened to us and our loved ones was allowed to happen again. So really, the main thing that we want from this Inquiry is accountability and reform.

“… we’re not saying that everything went wrong, but we just want the truth – the truth to be out there, and to know that if and when something like this hits our shores again … that we will be better prepared, and that there will be nowhere for those in power to hide.”

My Lady, we ask this Inquiry to hold and to heed those words until we have the opportunity to welcome you to Belfast in April next year.

Thank you.

Lady Hallett: Thank you very much, Ms Campbell.

Ms Mitchell. I was just looking to see whether it’s time to take a break, but it’s a bit early. Ms Mitchell.

Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell KC

Ms Mitchell: I appear as instructed by Aamer Anwar & Company on behalf of the Scottish Covid Bereaved.

In Module 1 we found out that the little pandemic planning that did exist was for the wrong pandemic. In this module, we found out that we’d a Prime Minister, the man ultimately responsible for all decision-making, described by those closest to him, saying his was the “wrong crisis for [Boris Johnson’s] skillset”. It would be difficult to understate the horror, the rage, the pain felt by the Scottish Covid Bereaved who had to listen to some evidence in this module. Between January and March 2020, the only advantage the UK had was time. This was squandered by the UK Government, as we all watched in real time the tsunami of the pandemic sweeping through Italy and the rest of Europe before reaching our shores. In that crucial period, the virus grew at an exponential rate. The UK Government failed to check there was any pandemic plan in place, failed to ensure testing capacity was available, failed to identify the likelihood and then the effect of asymptomatic transmission, failed to check whether there was sufficient PPE, failed to impose border restrictions, failed to understand the science they later claimed to be following, failed to lock down in time, failed to consider the disproportionate impact of the pandemic on the vulnerable, the disabled and on the black, Asian and minority ethnic communities, failed to recognise the specific impact on the health and social care sector.

Instead, the collective hamartia of this group was their groundless confidence that the UK would be okay despite every comparative example, particularly in Europe, pointing to the opposite outcome. The hubris of the UK Government left us defenceless by March 2020.

By Friday 13 March 2020, the horror that the civil service and politicians began to understand, what the scientists had known for many weeks but were seemingly unable to communicate or have understood, that the pandemic would rapidly overwhelm us and our beleaguered health services.

Far from dealing with a Churchillian leader, the politicians and civil servants, themselves involved in infighting and a toxic, misogynistic and macho working environment, found themselves managing a Prime Minister which meant repeatedly having to explain basic facts about the virus, not pushing things too heavily in case they pushed him the other direction, as we saw the evidence of the handshake, and he careered about so wildly that he was referred to as the trolley, agreeing with the last person who popped in to speak to him when he had been left unsupervised by his advisers.

Post facto suggestions that Hegelian decision-making was employed is laughable in the face of the evidence of the most senior civil servants in this country. The Cabinet was sidelined, COBR was a sham, Potemkin meetings, where decisions taken earlier were rubber stamped, the democratically appointed representatives from Scotland were excluded from meetings, blocked from meeting the Prime Minister for optical reasons but were then accused of playing politics. Scientific advice was dismissed in favour of the breezy optimism of the ill informed.

Our people faced the greatest threat since World War II, yet at the very time when we were all being urged to come together, the truth of the matter was that the UK Government was falling apart.

General apologies offered for failure suggest a humility not followed through in evidence by politicians. Many took repeated opportunities to explain what they thought they had done well, rather than actually answer questions.

Most of the evidence we have about what actually happened during the time has not come from minutes of meetings or documents created by public bodies, it’s come from the WhatsApp messages of those in government and the contemporaneous notes made by, for example, Sir Patrick Vallance and those involved in the decision-making process. Evidence before this Inquiry has exposed the chaos, dysfunction and – Boris Johnson’s own words – those at the heart of his government were engaged in a disgusting orgy of narcissism. A government incapable and unable to act when called upon to do its duty to protect its people.

From Friday 13 March there followed ten deadly days of delay before the decision to lock down was taken. During that period the virus was doubling every three days, and this Inquiry heard the shocking evidence of the then Health Secretary, Matt Hancock, who said that locking down three weeks earlier would have cut deaths in the first Covid wave by 90%.

As the pandemic continued, the toxic environment spread beyond the UK Government, the Scottish Government was accused of taking decisions for the sake of being different, rather than acknowledging the obvious fact that the Scottish Government was responsible for the health of its nation and that of Scotland. Most often cited examples of doing things differently for the sake of it were the cancelling of mass gatherings and the use of face masks in school. It was suggested at the time that the Scots were going soft on mass gatherings and wanting to make totemic decisions to shut them down. Evidence before the Inquiry confirms Boris Johnson’s stance that he should have cancelled mass gatherings earlier.

In relation to the face mask policy, the World Health Organisation advice changed and in the days after the Scottish Government changed its policy, the UK Government some time later followed suit.

Boris Johnson suggested the most crucial tool in the pandemic was communication. Those within the UK Government repeatedly suggested that the First Minister speaking to the people of Scotland about the health of the nation was apt to cause confusion, yet it has plainly been shown by expert evidence, at a time when clarity of messaging was so critical a tool, potentially deadly confusion was caused by the UK Government who repeatedly failed to properly distinguish the pandemic health messages between the four countries of the United Kingdom, finding itself in public message unable to distinguish between the UK, England, this country, and Britain.

None of this is to say that the decisions taken by the Scottish Government were always correct. The Scottish bereaved look forward to the same robust scrutiny that has been applied to the UK Government being applied in Module 2A, which starts in January 2024.

According to the National Records of Scotland, as of June 2023, when this Inquiry began, there were 17,646 deaths in Scotland where Covid was mentioned on the death certificate. In the last three years, over a quarter of a million people have died from Covid in the UK. Each of those deaths not only represents an individual tragedy, but has affected the friends and family, the loved ones of each of those who died.

How does this Inquiry make recommendations in all the foregoing circumstances? May we suggest the words of the most senior and respected civil servants in the UK Government be considered.

Firstly, Helen MacNamara, who served as Deputy Cabinet Secretary in Cabinet Office during the first year of the pandemic. She said in evidence:

“I think that the important thing is … how do you make sure that when anybody is in those sorts of situations again there are structures and systems that mitigate against what will happen to human beings in that situation.”

Secondly, Simon Case, from whom this Inquiry has yet to hear, but whose WhatsApp messages disclosed what was said in relation to Mr Johnson:

“Gov’t isn’t actually [this] hard, but this guy is … making it impossible.”

Accordingly, my Lady, the Scottish Covid Bereaved suggest in outline at this stage a number of possible recommendations:

One, a review of the organisational cultures within Whitehall, to look at the entirety of what happened across Whitehall during that period of time to try to understand why, and then how we can make sure that it doesn’t happen again.

As Helen MacNamara noted:

“… I think – those are the civil service questions: why did this happen? Why did the collective group of people decide to do things that are so clearly in the wrong place? And then how do we make sure [it] doesn’t happen again?”

Secondly, a review of the organisation of government. An insight in this module which would be fascinating if it were not equally as horrifying is that there appeared to be no substructure to the UK Government. Those formal structures of government that should have been in place were swept away in the pandemic. Groups which should have formed, such as the Joint Ministerial Committee, were not implemented, meantime ad hoc groups with no proper structure, authority, due diligence or recording procedure appeared. Without doubt, the Scottish Government and other devolved administrations required a seat at any table where decisions are being taken which affect the people they represent. And that, I would respectfully submit, is something that should also be considered.

Three, a review of the culture of government to address the striking lack of diversity, the misogynistic behaviour which saw women talked over and made to become invisible.

Four, the role of special advisers to government to be formalised and made accountable to an independent body, so that no unelected individuals can enforce their ideas and plan by sheer force of personality, overriding the democratic process.

Five, to consider the formation of two bodies, economic SAGE and, in the event of the next pandemic, a UK science advisory council much like the Scottish Covid advisory council which was set up.

Six, data sharing. There needs to be a centralised unit to bring in health data, to collate it, to aggregate it, and then to disaggregate it, so that in the next inevitable pandemic we can use one of our most important resources, knowledge, to greater effect.

Seven, the establishment of an expert hot tubbing group, experts from different disciplines to assist both the UK Government and the devolved governments to advise on the interaction of those disciplines, rather than the government alone weighing up different concerns. Had such a group been in place, the false dichotomy which we have heard about of economy versus health could have been argued and explored by experts in health, economy, behavioural sciences, et cetera, rather than leaving it to the government.

Eight, lastly, and unsurprisingly, a legal requirement that all communications relating to the work and decision-making of the UK and devolved governments, including of course electronic communications such as WhatsApp, must be saved and recorded in order that there be transparency in the decision-making process within government.

My Lady, these are only some of the outline recommendations from the Scottish Covid Bereaved.

However, before concluding, at the start of this Inquiry, Aamer Anwar on behalf of the Scottish Covid Bereaved presciently stated:

“… it is for this Inquiry to illuminate the truth.

“Over the coming months and years there may be times this inquiry may falter, but it cannot afford to fail. It will undoubtedly come under sustained and repeated attacks.

“It must, however, never be afraid to raise its voice for the truth: that is the very least we owe to those who lost their lives …”

There has indeed been sustained and orchestrated attacks, and at times personal, on this Inquiry, its Chair, and its legal team. Those we represent in the Scottish Covid Bereaved wish to make it clear that any such attacks on the work of the UK Covid Inquiry are an attack on the bereaved who want the work of this Inquiry to continue without fear or favour.

Before we finalise our submissions, we wish to conclude to peruse some of the disclosure that we still haven’t finalised, and also listen carefully today and tomorrow to the views expressed by the other core participants, and will provide detailed written submissions in January.

These are the oral submissions on behalf of the Scottish Covid Bereaved.

Lady Hallett: Thank you very much indeed, Ms Mitchell.

Right, I think we’ll take a break now. I shall return at 11.25.

(11.08 am)

(A short break)

(11.25 am)

Lady Hallett: There is – just as I was coming in, I don’t know if the news had reached you, that – the news that Mark Drakeford has resigned.

Ms Harris: Yes, thank you, my Lady, we did hear that news. Thank you.

Lady Hallett: Ms Harris.

Submissions on Behalf of the Covid-19 Bereaved Families for Justice Cymru by Ms Harris

Ms Harris: Good morning, bore da. I represent Covid-19 Bereaved Families for Justice Cymru, CBFJ Cymru.

CBFJ Cymru is dedicated to campaigning for truth, justice and accountability for the bereaved in Wales. Its members have experienced first-hand failures to respond adequately to the pandemic in Wales and the UK as a whole, and the catastrophic effects of those failures. The group seeks answers about what happened in Wales and why decisions which impacted on Wales were made in the way that they were, so that there can be true accountability and lessons learned.

The pandemic response in Wales was primarily the responsibility of the Welsh Government, acting under its devolved responsibilities, and it primarily must be accountable for that response. However, the UK Government’s decisions and UK level structures also played a part in shaping the response in Wales.

In the period leading to the first national lockdown, Welsh Government decisions were aligned with UK Government decisions, all four nations sat on COBR, and agreed the Coronavirus: action plan of 3 March 2020 and full national lockdown on 23 March. How decisions relating to Wales were made will be examined further in Module 2B of this Inquiry, but we know that after 23 March 2020 at times Wales adopted the same policy as the UK Government’s policy applicable in England, although at times with later implementation in Wales, for example the hospital discharge policy and whole care home testing, and at other times policies were different. For example, the switch from Stay at Home to Stay Alert in May 2020 was not adopted in Wales, and in Wales there was an autumn firebreak. The main financial levers were at the UK Government level. SAGE was the main source for scientific advice UK-wide, including for Wales.

Against this background, a central concern for the Welsh bereaved families in this module, which will be addressed in this statement, is whether the UK Government and the devolved Welsh Government collaborated effectively.

This statement will also consider some of the key areas of UK Government decision-making and UK structures where these have shaped and are relevant to understanding the response across the UK, including Wales.

Two brief initial points. On preparedness, the lack of preparedness for a pandemic is a key matter of context for the subject matter of this module. Two significant aspects relevant across the UK were the lack of an overarching plan for a pandemic response such as this, and the lack of a scalable infrastructure for testing and for test and trace. As was pointed out in the evidence to the Inquiry, had the public health infrastructure in the UK been as developed as in some other countries, other paths and outcomes may have been open to the UK.

Professor Hale’s evidence to the Inquiry was that the most effective governments were able to minimise the use of stringent measures by relying on effective test and trace and isolate systems, and that such strategies are particularly effective when combined with fast, stringent but limited non-pharmaceutical interventions (NPIs).

The UK did not have that infrastructure, which could have given it a better chance of a response that would cause less harm. So this must be one of the key lessons for the future.

The second opening point is that in this group’s opening statement to this module, we asked if the older population were a cohort who were overlooked by the UK Government, whether they were seen as lesser or dispensable. The evidence to the module has shown that this cohort were sometimes spoken about by the then Prime Minister in a way that suggested that they were dispensable:

“… there will be more casualties, but so be it – ‘they have had a good innings’.”

Is one example of that type of comment.

Turning to the initial response to the spread of Covid-19, at the early period of the response to the pandemic the evidence has shown fundamental problems in the decisions, actions and inactions of the UK Government. The Welsh Government was closely tied in to the response at the UK Government level in this period, so the evidence provides insight into the response in Wales too.

The UK Government response was shown on the evidence to lack a sense of urgency, to lack a plan and a strategy, and the lack of a strategy impacted on how science advice could be provided to it. Evidence was given to the Inquiry that throughout 2020 SAGE suffered from having little sense of what the high-level strategic objectives of the government were in managing the crisis, and that had it known it may have reached conclusions about the need to adopt the policies that it ultimately advised faster.

The only overarching plan for a pandemic response prior to 3 March 2020, the 2011 pandemic flu plan, which applied to Wales also, was aimed at managing the consequences of a flu pandemic, not stopping a virus from spreading. It was based on the wrong doctrine.

Evidence has been heard about Exercise Nimbus in February 2020, that it was directed not at what could be done to counter the spread of the virus, but how to prioritise patients in the event of the NHS becoming overwhelmed.

As was stated in the evidence, what should have been addressed was at what point to lock down, how much data was needed before making a decision, what NPIs were going to be put in place and in what order, how do you save lives in the least damaging way; and not, are we going to find enough mortuary space, and who should decide on prioritisation for NHS treatment?

The Coronavirus: action plan, a four nations document, set out an approach but was less than a plan for action. References to action points to counter the threat of widespread spread of the virus were oblique and it overstated the extent of any other existing plans in place.

The decision made by the UK Government on mass gatherings was not to ban mass gatherings and not to advise against them until 16 March 2020, the same approach being adopted by the Welsh Government. The Inquiry should find, as has been accepted in the evidence of witnesses, that mass gatherings should have been banned earlier. Other countries could be seen to be banning mass gatherings, and on 12 March 2020 the number of cases was in the thousands and growing. The people in Wales knew, as evidenced by the fact that you could not buy hand gel anywhere in Wales at that time.

Politicians should have thought more widely than just the scientific advice and taken account of the wider context at that time.

The evidence to the Inquiry has shown that throughout February and into early March, evidence was emerging about the growing threat of the virus and this was not being responded to with proportionate speed and focus, and it followed inevitably, and as the evidence has shown, that the interventions that were necessary were not timely. This includes the 23 March national lockdown agreed by all four nations.

I now refer to asymptomatic transmission. CBFJ Cymru are deeply concerned about the evidence showing that the risk of asymptomatic transmission was not factored into decision-making at the early stage. It is clear that although uncertain, the risk of asymptomatic transmission was known very early on. The way this factor did not inform decision-making even when there was very high vulnerability to the disease is impossible to comprehend.

The then UK Government Secretary of State for Health and Social Care when giving his evidence appeared not to have understood or to be ignoring the full findings in the legal case that was brought by Dr Gardner and Ms Harris which challenged the March 2020 hospital discharge policy and other surrounding policies. The court found that those drafting the March discharge policy and the April admissions guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.

Paragraph 289 of the judgment.

We have also heard evidence about the fact that a policy relating to reducing the movements of care home staff between different care homes was not implemented until 15 May. Had it been brought in sooner, then it would have prevented some of the spread of infection into care homes, and that the risk of asymptomatic infection had not been properly taken into account in deciding whether such a policy was needed at an earlier stage.

Lessons must be learnt from the way the system for health and social care failed to do what it was supposed to do to protect vulnerable people in the most fundamental way, and about how a risk that was uncertain, but one that had the potential for devastating consequences, was taken into account in decisions that concerned very vulnerable people.

The issues will be returned to in the context of Wales in Module 2B, because Wales adopted a similar hospital discharge policy to the one considered in this module, and will have also needed to consider asymptomatic transmission and very vulnerable populations.

I deal very briefly with airborne transmission. In the group’s opening statement we invited the Inquiry to consider whether enough was done to consider this factor, the airborne nature of the virus, and in the course of Module 2 the Inquiry has heard evidence from Professor Catherine Noakes, who was convener and chair of the Environmental Modelling Group, which was a subcommittee of SAGE.

She spoke of this aspect of the virus being overlooked, and the need for mitigations which focused on ventilation, the need for care in relation to appropriate face masks that could guard against the aerosol aspect of the transmission.

She also referred to the fact that information on the websites of Public Health England and the NHS had not provided up-to-date information, and had not referred to the airborne nature of transmission, and that she had needed to contact Professors Whitty and Vallance about this, and indeed the information on the NHS website was not changed until June 2021.

The Inquiry has also heard evidence from Dr Banfield from the BMA about the importance of ventilation, about the importance of FFP2 and FFP3 respirators being available for vulnerable people, as offering better protection from infection than ordinary masks, and the need for clearer public health messaging in this area.

CBFJ Cymru believe that the seriousness of airborne infection is still not appreciated and acted on in Wales. This is relevant in many settings, including hospitals, and a hospital-acquired infection remains a significant concern in Wales. They wish the Inquiry to make recommendations at speed about responding to the airborne nature of the virus.

I turn now to the subject of intergovernmental relations. The Welsh Bereaved Families believe that all UK and devolved governments should have worked more closely together with a single aim of providing the most effective response that they could to the pandemic. This was in order to have the best chance of reaching agreement on policies across four nations, and where policies were different, so that they could consider the implications for each other of their different policies and co-ordinate implementation and public announcements. In some, co-ordination between nations would lead to a more effective response and better chance of saving lives.

In the evidence before the Inquiry, there has been frequent reference to a four nations approach, used to signify not just the four nations acting uniformly but also flexibility for nations to adopt different approaches whilst co-ordinating with each other. There are plenty of examples of ministers inviting and endorsing a four nations approach, but to what extent did the UK Government and the Welsh Government do all they reasonably could to promote a four nations approach?

The Inquiry has heard that at the level of health ministers, that there were meetings of the four health ministers by regular calls and that there was also a shared WhatsApp group. Mr Hancock said that this filled the gap where there had been a missing piece of institutional architecture, and it worked well. He commended the other health secretaries for their approach, saying they left politics at the door, and he referred to the warmth of their relationship. There will be further evidence on the subject in Module 2 and of the Welsh perspective on those meetings.

There was also evidence of regular close engagement through the pandemic between the four chief medical officers of the four nations. There was much evidence about how positive these engagements were.

The question must be asked, however, when the core science was the same, how were there so many differences between policies in England and Wales that were not avoided, whether in relation to mask wearing or testing or other differences in the plethora of rules after coming out of the first lockdown?

These issues will be looked at further in Module 2B, as to whether the differences were because of lack of communication or delay or delay in implementation or whether there were other reasons.

The position as between the Prime Minister and the First Ministers of the devolved administrations must be considered. Mr Boris Johnson, in his evidence, made several statements to the effect that the relationship was good between the UK Government and the devolved administrations. But Mr Drakeford pointed out that there were significant problems in the structure of the relationship at the Prime Minister and First Minister level during the pandemic. He wrote to the Prime Minister requesting greater collaboration.

The Inquiry has heard that after 10 May 2020, the UK Government decided that COBR would cease to meet regularly and it did not meet at all between 10 May and 22 September 2020. This meant that the four nations, having gone into lockdown together, when they were taking the careful steps of coming out of lockdown, the Prime Minister and the First Ministers of the devolved administrations ceased to meet on COBR as they had done previously. At that stage, and from then onwards, there were more differences in policies between the UK Government and the Welsh Government.

The Inquiry has heard that at that time it was suggested to the then Prime Minister, Mr Johnson, that he convene the Joint Ministerial Committee as a means of engagement with the First Ministers of the devolved administrations. But Mr Johnson decided not to do so. Instead, he decided, with the support of Mr Cummings, that the First Ministers were to have regular calls with Mr Gove.

The Inquiry has heard that it was considered that Mr Gove did a skilful job, but this arrangement meant that the devolved administrations’ First Ministers did not have direct contact with the Prime Minister on a regular or predictable basis. There was, as was put by Mr Mark Drakeford in his witness statements, a lack of a regular rhythm of engagement, a lack of regular check points that only the Prime Minister could provide, a vacuum at the final pan-government level.

Mr Johnson gave his reasons for making these arrangements in the way he did. In his view, it was optically wrong for the Prime Minister to meet with the devolved administration First Ministers, as though the UK were “a kind of mini EU of four nations”. He referred to wanting to avoid the risk of pointless political friction and grandstanding because of the well known opposition of some of the devolved administrations to the government and also to avoid leaks.

These were not good reasons. Mr Gove’s evidence on leaks should be noted. He said it is most important to have the “right people in the room” and that overall, in the greater scheme of things, that leaks were not a particularly significant concern.

The Prime Minister’s reasons for not engaging more directly with the First Ministers betray a lack of commitment to serious and grown-up attempts to work with the DAs. That was a wrong mindset. And that mindset was also evident from the comments of Mr Dominic Cummings when he said that it was thought that Mr Gove would handle the process of dealing with the DAs better and that, generally speaking, the Prime Minister talking to the devolved administrations did not advance any cause.

Dominic Raab in his witness statement said he found it became irritating as the pandemic went on that Scotland and Wales wanted to do things slightly differently or with different timings for what appeared to be political reasons.

It is to be observed there is a clear inconsistency in on the one hand criticising the devolved administrations for not aligning with the UK while at the same time denying them access to the decision-making process.

Mr Gove in his evidence suggested that there was a case for overriding devolution when it came to the pandemic which affected Great Britain, and whilst issues such as how much fruit to eat and so on were quite properly a matter for devolved administrations, that such a pandemic might not be. That, of course, it is to be observed, would be contrary to the footing upon which the four nations agreed their response to the pandemic from the start, which was on the basis of settled devolved responsibilities.

Public messaging was, of course, very important, and where the four nations did not have the same policy there obviously needed to have as much clarity as possible about what applied where.

The evidence has shown that the UK Government did not apply commitment to that goal, and the Inquiry has been referred to the report of Professor Henderson, where she analysed speeches throughout 2020 which showed that the UK Government did not outline the territorial scope of its information and guidance on many occasions, and also that press briefings were unclear as to when new rules applied to the whole of the UK or were England-specific.

These are things that could easily have been avoided. Evidence has also been heard about the way in which the change from the message Stay at Home to Stay Alert was handled, without again, a clear plan, to be clear, that the devolved administrations did not change their message to Stay Alert. The UK media also contributed to the confusion by failing to state when public health messages did not apply in the devolved administrations. Professor Henderson has commented on this, “These errors were avoidable”.

In our written statement, we will make observations about SAGE and about the improvements that there were in co-ordinating and providing access to the devolved administrations to the Welsh Government and how we would hope that this will be able to be further developed.

To turn to the conclusions that I wish to make on behalf of CBFJ Cymru, there will be many suggested lessons for the future and CBFJ Cymru contributes the following few points:

First, the recently reported system for intergovernmental relations between the UK Government and the devolved administrations should include structures suitable for a prolonged period of crisis such as a pandemic. In the pandemic, a formal structure for regular meetings at the Prime Minister level, plus the calls with Mr Gove, would have been a better arrangement.

Two, four nations public communications and announcements need to be conducted in a rational way, being clear as to what applies where.

Three, UK-wide science advice structures should be accessible to the devolved administrations, including attending the committees where appropriate and collaboration with the devolved science bodies.

Four, public health information and messaging should be systematically informed by the up-to-date science on infection control measures.

Which is linked to five, that there should be greater focus on identifying the whole range of relevant ways of reducing the risk of spread of infection in the community and outside the community and in hospitals, care homes, et cetera.

Six, as to the significant issues that this module raises as to how the centre of government operated in a crisis, this is not dealt with in detail here, other than to say it is clear that there needs to be consideration of structures that will produce better decision-making, of the need to draw on a wider range of life experiences when making decisions affecting huge numbers of people’s lives in major ways, and as to how politicians interact with the scientists from whom they seek advice.

Seven, there will be many lessons in the area of

social care from this module, and the later modules, and

that is a subject too large to attempt here.

Two final points. From the perspective of Wales, as

well as the above, what also emerges is that at some

levels of the UK Government there was a failure to

embrace the task of working with the devolved

administrations. There should have been close and

grown-up collaboration, which people across the UK were

entitled to expect. Whether the Welsh Government did

all it should have done to collaborate must be

considered in Module 2B of the Inquiry, which is yet to


Finally, the lesson has been learned, of course,

that the institutions of the UK Government were very far

from equal to the task of responding to the pandemic and

that this brought devastating consequences, and we will

refer in more detail to that aspect in our written


Thank you, my Lady.

Lady Hallett: Thank you very much, Ms Harris, very


Mr Metzer.

Submissions on Behalf of Long Covid Kids, Long Covid SOS and Long Covid Support by Mr Metzer KC

Mr Metzer: My Lady, I appear with Sangeetha Iengar and Shanti Sivakumaran on behalf of the Long Covid groups, instructed by Jane Ryan of Bhatt Murphy.

Long Covid voices. Our clients are angry. They have been disbelieved, dismissed, and ignored, and suffered the ignominy of hearing Mr Johnson’s testimony last week. My Lady began this module from hearing by those impacted by Covid-19 and it is apt to return now to the voices of our clients.

Aurelie Summers(?), a Covid frontline nurse who contracted Covid in the first wave, said:

“Long Covid had not been mooted as a thing. As a result, my ongoing symptoms were often met with scepticism and a degree of gaslighting.”

She was sadly not an anomaly. Kim Horsmanshough(?) said:

“I thought it was going to be a cold, because I am 37, went to the gym several times a week, and all the messaging was that Covid was nothing to worry about if you were young. My family find it hard to accept that I’m disabled. It’s hugely isolating.”

Many lost their livelihoods. Una Cousins was a professional athlete who was preselected for the Olympics as part of the British rowing team. After developing Long Covid, she was struggling with cooking, showering, and getting out of bed, all the basic daily tasks. Long Covid has forced Una to retire completely from her rowing career.

Parents were not warned that Long Covid could debilitate and disable their children. Jessica, a 10-year old who has lived with Long Covid since November 2021, describes how “no one at school or in health believed me until I ended up in crisis in hospital with a feeding table”. Jessica was very active and loved to roller skate with her family. Now she needs a wheelchair, can’t walk or attend school.

You heard from our client, Sammie McFarland, during the impact films. In her statement, she said:

“It has been extremely distressing to watch my child, who had been previously completely healthy, happy and dancing around, being unable to move and full of self-doubt. It was like watching my child fade away. She is no longer the child she was.”

New voices continue to be added to the collective Long Covid experience. Today, people will develop Long Covid from new Covid-19 infections. They will lose their physical health, their ability to work, to go to school, they will lose their lives as they know them. The lessons to be learned from government decision-making matter now as much as they do for the future.

The voices of people with Long Covid have been represented by the Long Covid groups, Long Covid Kids, Long Covid SOS, and Long Covid Support, who have followed the hearings closely. They have sought answers to questions they have carried with them since they began suffering from the long-term effects of Covid-19. Their suspicions have been confirmed.

First, the Long Covid groups have heard evidence of the unfounded dismissal of their illness exemplified by the attitude of the former Prime Minister, Boris Johnson.

Second, the evidence is that Long Covid was, at best, an accepted trade-off when decisions were made about easing restrictions and, at worst, entirely ignored as an inconvenient truth.

Third, the evidence demonstrates that there was a wholesale failure to use what Mr Johnson calls the most important tool of public messaging, to communicate the indiscriminate risk of long-term harm to the public which covers the risk to children and adults of all ages. These cumulative errors have caused avoidable injury and enduring suffering to the Long Covid groups.

Disbelief in Long Covid. The Long Covid groups have sought to understand how and why there was an inexplicable delay in the government’s recognition of Long Covid when longer term sequelae were foreseeable and well established from other recent coronaviruses, such as SARS and MERS.

We now know from the evidence that the risk of long-term sequelae was in fact foreseen. The Secretary of State for Health and Social Care, Matt Hancock, and the Prime Minister’s most senior adviser, Dominic Cummings, both recalled being advised by Professor Sir Chris Whitty, the CMO, and Sir Patrick Vallance, the GCSA, that Covid-19 was likely to have long-term effects on a significant number of people. Yet it took patient advocates, already suffering from Long Covid, to advocate for action. Long Covid is a patient-made term. It did not need to be.

Mr Johnson’s attitude to Long Covid exemplifies the biases that the Long Covid groups were formed to counter. He doubted that people with Long Covid had a real condition. This is not true. The scientific advice and lived experience of people suffering from debilitating long-term symptoms caused by Covid-19 is very clear.

Mr Johnson now claims that his scrawl of “bollocks” on a box grid in October 2020, this one obscene word, was his attempt to request advice on Long Covid. My Lady, there are glaring holes in his belated claims that he was seeking advice on Long Covid.

First, and significantly, Mr Johnson only came up with the suggestion that he was asking for advice in oral evidence. His witness statement tells an entirely different story of a man who dismissed the suffering of millions, despite the wide range of people who were trying to open his mind to the worrying reality. He waited until late May 2021 to ask his CMO for further information on Long Covid.

Second, the box grid he was presented with outlined the NIHR report on Long Covid commissioned by Professor Sir Chris Whitty, which reviewed scientific and clinical data on long-term sequelae. He did not ask to see the full report, which he knew was available.

Finally, Sir Patrick Vallance said he made the Prime Minister aware of Long Covid. This is supported by his diaries, which record Mr Johnson repeatedly referring to Gulf War syndrome when Long Covid was raised.

The evidence overall, including that from Mr Johnson’s own witness statement, makes plain that Long Covid was an inconvenient truth that Mr Johnson chose to ignore. This choice caused great harm and immeasurable suffering.

Avoidable harm. My Lady, a crucial question is whether nearly 2 million adults and children with Long Covid was avoidable. Decisions around the introduction of and release of NPIs were matters of life and death, of health and sickness. The long-term harm caused by Covid-19 was a relevant outcome from those decisions. Put plainly, Long Covid was not considered in the decisions taken in response to the pandemic. Sir Christopher Wormald confirmed as much, saying that the sole factors under consideration were hospitalisation rates, the spread of disease and the death rate. Is it not simple common sense that long-term harm from a virus is relevant to how a pandemic is managed?

Sir Patrick Vallance explained the lack of consideration of Long Covid by saying that “the Covid pandemic was running at high levels all the way from August through to the end of that year, and so the recommendation was keep the prevalence low. That was not happening, and the consequence of that is more people with Long Covid, and I don’t think that was something that policymakers were keen to factor in”.

Professor Sir Chris Whitty, in his witness statement, observed that recognising Long Covid could occur at any age had important practical implications as it made him more cautious to the effects of Covid-19 in the young and in otherwise healthy adults.

It is extraordinary that he thought that long-term harm was not something the Prime Minister needed to know in 2020, when Sir Patrick Vallance was warning the Prime Minister and the Cabinet that this was a material consideration.

Sir Patrick advised that strategies like segmentation or the Great Barrington Declaration proposal, which allowed high rates of transmission amongst the young, would result in large numbers of people contracting Long Covid.

The failure to consider Long Covid when making decisions on NPIs had three stark consequences.

First, before the second wave, the Prime Minister wanted to be the mayor of Jaws, and was actively trying to keep the beaches open while delaying the decision to take a second lockdown. He entertained strategies where he thought by keeping the known vulnerable off the beaches the rest of the population could go out to sea. As Dame Angela McLean said, there were unknown vulnerable who could develop Long Covid. The Prime Minister ignored the fact that the shark in the water could maim anyone.

Second, as restrictions were eased, there was little, if any, focus on the need to prevent Long Covid. This meant that strategies which allowed high prevalence of Covid-19 in 2021 did not include mitigation measures to encourage preventative behaviours so people could avoid the risk of Covid-19 and its concomitant risk of Long Covid.

To the extent that Long Covid was considered, Mr Javid told us that it was, at best, an accepted trade-off for the release of restrictions. If the risk of Long Covid was factored in at all, our clients are entitled to question why simple, uncostly mitigation measures were not kept in place to lower that risk.

Third, regarding the financial burden of the disease, the socioeconomic costs of a virus cannot be fully quantified and planned for if the long-term impact of the virus is not measured and factored into decision-making. The OBR recognised there would be an economic cost associated with increased cases of Long Covid in 2020, but this cost was not factored into government advice until the Covid Taskforce paper in April 2021. Even then, the economic cost of Long Covid was still not a feature of Treasury advice on NPIs. Mr Sunak admitted that the impact of Covid on the labour market was misestimated. The Treasury was disproportionately focused on the costs of measures in response to Covid-19 rather than the costs of the virus itself.

Decision-making that had factored in Long Covid when unlocking NPIs would have prioritised public messaging warning people of all ages of the indiscriminate risk of Long Covid and maintained mitigation measures to prevent transmission of Covid-19, such as guidance on mask wearing, improving air filtration and ventilation in public buildings, supporting policy recommendations on clean air, supporting employers with health and safety risk assessments, and ensuring free lateral tests remained available.

One of the very many clear examples of the failure to incorporate Long Covid into decision-making is in relation to children. As at March 2023, there are at least 62,000 children with Long Covid. Mr Johnson called schools “reservoirs of risk”. In May 2021 there was agreement between the DHSC, the PHE, NHS and the DfE that messaging in schools should signpost for any child experiencing long-term symptoms following a Covid-19 infection. Yet, messaging and other adequate Covid-19 safety measures weren’t put in place in schools, public buildings and hospitals, and still don’t have adequate measures. Long Covid could and should have been considered in decision-making around NPIs.

Public communications of the risk of Long Covid. Mr Johnson, Mr Hancock and Sir Christopher Wormald have all emphasised that public communications are an important NPI in the toolkit of responses to a pandemic. Yet there was an unacceptable absence in communications on Long Covid. During the pandemic, we watched daily press conferences and looked to our Prime Minister and his closest advisers to provide us with accurate, timely and reliable information on how to protect ourselves, our families and our communities. The Prime Minister did not mention Long Covid once. Indeed, we now understand that there was no government communication strategy for Long Covid. This left people believing that if they were otherwise healthy, they would recover quickly when they fell sick as they had been reassured would be the case for the majority of people.

Mr Hancock acknowledged the role that the Long Covid groups played in drawing his attention to the impact of Long Covid, and the need for better communication. Yet the one video with its single accompanying press statement issued by the DHSC on Long Covid in October 2020 was simply not enough. It came months after public recognition of Long Covid in the US by Dr Anthony Fauci and Dr Tedros Ghebreyesus from the WHO.

After October 2020 there were no slogans, no public health messages and no campaigns on Long Covid by DHSC or across government. On being pressed by Ms Cecil, Mr Javid admitted that there was no communications campaign on the risk of Long Covid to the public under his watch. In the absence of public messaging, people felt frustrated and abandoned.

Professor Sir Chris Whitty has admitted that it would have been helpful to acknowledge Long Covid at an earlier stage. The overwhelming picture is that people were not warned that they were all, including previously fit, healthy, active people, indiscriminately at risk of suffering from long-term ill health from Covid-19.

The public deserved to know the risk that Long Covid posed to them, so that they could take steps to protect themselves from it. Decision-makers could and should have used the preventative tool of public messaging to communicate the risks of Long Covid.


My Lady, the long-term impacts of Covid-19 are but one aspect you will need to consider in relation to the response to the pandemic. We have heard evidence which sheds light on the inner workings of government at the height of the crisis. You may conclude that the decision-makers at the heart of government could not be trusted to make rational, consistent, strategic decisions to guide the country through this crisis.

Looking forward, we hope that this Inquiry will make findings and recommendations that will ensure that we are better prepared to respond to pandemics. It is simple common sense that long-term harm from a virus must be a relevant consideration for government to protect the public.

The unjustifiable delay in imposing NPIs, including the first and second lockdowns, meant that people needlessly contracted Covid-19 and developed Long Covid. Suffering has been the avoidable cost of delay and indecision. The evidence you have heard suggests that maintaining low levels of transmission of a novel virus is better for economic, health and social outcomes and it means that lockdowns can be introduced with more notice and shorter duration, reducing the economic impact of those measures.

However, the experiences of those with Long Covid have illustrated that it is not enough to focus exclusively on the short-term impacts of a virus. When challenged about the lack of consideration of Long Covid, decision-makers fall back on the defence that preventing Covid-19 meant preventing Long Covid. Aside from the obvious point that decision-makers failed to prevent high transmission of Covid-19, and indeed came to accept it as part of their policies in summer 2021, this approach fails to grasp that there are additional considerations to preventing Long Covid. The twin considerations are the indiscriminate risk of Long Covid and the need to maintain measures to minimise that risk as social distancing measures are released to the public.

My Lady, we invite you to recommend that the long-term health consequences of a novel virus are planned for, identified, monitored, measured and factored into any response to a pandemic. These recommendations are equally relevant today. The Covid-19 pandemic endures, yet Long Covid is no longer being counted or reported on.

Recommendations relevant to long-term sequelae could fall within four broad categories, all drawn from the evidence related to Long Covid.

First, surveillance systems should be in place from the outset of the pandemic, preferably in the form of sleeping studies, to identify and monitor data on the impact of longer term sequelae so that long-term health implications can be recognised early.

Second, the long-term health consequences of a novel virus must be factored into decision made in response to the transmission of the virus and included in assessments of the necessity for NPIs and PIs as they may have a different risk profile to acute infections and add to the burden of the disease.

Third, decision-makers should take a preventative approach and provide clear, timely and consistent public messaging on the long-term consequences of infection throughout a pandemic, to raise awareness of the risk of long-term consequences, to encourage protective behaviour and signpost available treatment resources.

Fourth, adult and child patient voices should be involved from an early stage of any pandemic response to ensure that policies are responsive to people’s needs.

These four categories of recommendations would ensure that the avoidable ongoing suffering of nearly 2 million adults and children in this country is never repeated.

Thank you.

Lady Hallett: Thank you, Mr Metzer.

Mr Friedman.

Submissions on Behalf of Disabled People’s Organisations by Mr Friedman KC

Mr Friedman: My Lady, as you know, we act for disabled people’s organisations, or the DPO, run by and for disabled people, and they are Disability Rights UK, Inclusion Scotland, Disability Wales and Disability Action Northern Ireland.

Disabled people who have lived through and died of Covid with the knowledge that what happened to them as 60% of the Covid fatalities and what happens to them in the future as 20% of the population is largely a matter of political and social choice.

In our opening submissions, we made nine criticisms of the Covid emergency state. The evidence you have heard reinforces those criticisms. They concern the way we are governed and, by extension, under a democracy, the way we allow ourselves to be governed.

Starting with the system, disabled people did not exist in the UK emergency planning prior to 2020, yet the basics of what would happen to them during Covid were foretold in 2017 by the UN Committee on the Rights of People With Disabilities. It effectively found the UK in breach of its legal duties over consultation, data collection and emergency planning. In a separate investigation, the committee concluded that the resilience of disabled people had been placed in abject jeopardy by ten years of austerity. These were landmark findings by a United Nations committee against a western state. It’s a rule of law issue that at no stage in any of the papers does anyone recognise these rights, or the fact that the UK could conceivably breach them. This is not an accident. Since 2010, the leadership of the Conservative Party has increasingly defined itself by its opposition to what it considers the inconveniences of international law, especially the law of human rights. The UN CRPD is the global tool box for real change, and given that the government don’t and won’t recognise these breaches, we say with respect, my Lady, you must.

The second failure is that when the pandemic broke out, not only was there no plan for disabled people, but the failure to plan was not recognised then, and it is not recognised now. Proper recognition would have publicly confronted from the outset that cuts in benefits and services had compromised the resilience of disabled people to deal with the life changes that the NPIs were about to create. It would have declared clearly that the fact that there was no whole society planning for the pandemic in the UK would rebound terribly on disabled people. It would have identified deficiencies in the gathering and use of data as the single greatest decision-making impediment going forward. It would have assembled DPOs and other parts of the third sector into an emergency network with properly funded participation and co-ordination between representative leaders and groups, dedicated experts and the right members of government. It would have immediately made clear that if a significant connection between the Covid state and society was going to take place on the internet, then a large part of disabled people were going to be disenfranchised, unable to access essential services, and not able to work from home. It would have done everything, not only to recognise the predicament of disabled people, but to substantially redistribute financial resources to meet their basic needs. That level of public reckoning and consequential planning did not happen. Instead, the testimony of ministerial witnesses produced two highly problematic answers as to why it did not matter that there was no plan.

The first, from Mr Tomlinson, Ms Badenoch, Mr Gove and Mr Johnson was essentially that the risks of Covid to disabled people were so obvious that all of government was no doubt working on them. My Lady, they were obvious to everyone but the responsibility of no one. No one was responsible for holistic cross-government leadership and identification of gaps, and when civil servants were finally pushed to deliver ambitious proposals after Michael Gove’s October 2020 letter about terrible missed opportunities and time running out for the second wave, none of the major proposals were adopted.

The second problematic answer came from the previous Minister for Disabled People, Justin Tomlinson, the witness nominally responsible for producing a plan. His repeated response to our questioning as to why there was no plan was “that’s just not how government works”.

Tomlinson’s answer leads to our third criticism, of the machinery of government. Instead of a department of state for inequalities which includes disabled people in its portfolio, we have a Disability Unit that deals only with policy. My Lady, to borrow Mr Gove’s analogy, equality issues are shoved into the Cabinet Office portmanteau, and then divided inefficiently across other departments. Justin Tomlinson was not a lead Minister for Disabled People, he was in effect a minister for disability benefits who did some front-of-house meetings with disabled groups.

The writing out of disabled people from Kemi Badenoch’s investigations into disparities is a case in point. Who directed it? Badenoch said she discussed it with Liz Truss, but any such decision was not written down. Tomlinson knew nothing about the decision. Hancock, who saw the purpose of the Badenoch review to “improve understanding of drivers for disparities to inform decision-making”, was never told that those drivers for disabled people were going to be overlooked. Boris Johnson did not know why they were either. But going back to the no one being responsible, he assured you it was all being done elsewhere.

In our submission, they all said that because they know now it should have been, but it was not.

Our fourth criticism is about expertise. Not the integrity with which it was provided, but its gaps and unexposed assumptions. Pandemic science is not socially neutral. That is because the impact of pandemics is fundamentally determined by inequalities, such that the outcomes of clinical advice cannot be hermetically sealed from social consequences. These distinctions matter to disabled people, because their struggles are so often rationalised as inevitable due to their conditions rather than socially conditioned by our treatment of them. That is why the case for more diverse representation of expertise in the provision of advice was so strong, not only for those within the advisory groups to contemplate the broad horizons of what they were advising about, but as Professor Vallance noted, for those within government structures to ask the pertinent questions of their advisers in the first place.

Our fifth criticism is that in real time the predicaments of disabled people were largely unrecognised. We know from the DHSC battleplans that the primary focus was on the clinically vulnerable. Broader health and social inequalities were not part of initial planning. Strategies to protect the vulnerable and the overlaps and distinctions between clinical and social vulnerability failed in ways that most of the witnesses you have heard from have either not been able to comprehend or admit. There are several examples relating to food, other essential supplies, and social care.

But, my Lady, reflect, please, on Down’s Syndrome. The question for the medical officers was not: who is to blame for why people with Down’s were not designated as clinically extremely vulnerable earlier than November 2020, when the potential risk was flagged in June 2020? The question was: what could have been done to speed that designation up?

It is difficult to comprehend Professor Whitty’s answer that the delay was caused by the need to balance the nature of the risk with the social imposition of lockdown. It was the duty of the medics to advise on the risks, and then the responsibility of government to facilitate a sufficient shielding package. Neither do we accept Professor Harries’ answer that the medical situation was too uncertain before an earlier date. Apart from anything, Covid-O received the recommendation to add Down’s Syndrome to the CEV as of 1 October, but the letter did not go out until a month later.

Overall, the answers around Down’s Syndrome are disappointing. The medical advisers were unwilling to engage with the fact that this was a disastrous event, that the delay was caused by not acquiring data quickly enough, the absence of a sufficient data collecting system, and the lack of co-ordination with the Down’s community and their carers to get that data earlier and work out better shielding packages.

Our sixth criticism is the lack of real engagement. When people refer you to consultation, they often do not mean the same thing. When government and civil servants talk about consultation, they can mean set piece meetings or discussions with those who speak for people rather than speaking with the people themselves, and most often they mean some sort of questionnaire on the internet.

When DPOs and other represented groups of marginalised people talk of consultation, they mean collaboration as equals between elected officials, experts and themselves. They mean co-production and co-design.

My Lady, we don’t apologise for introducing this language that potentially be new to some, and note in any event that it was used by Mark Sedwill and others. The language reflects the method to make the needed change happen. Entitlement to this collaborative consultation also represents a human right under the UN CRPD as opposed to some sort of discretionary gift of government.

One of the lessons of this module is that we still tolerate an old fashioned elite system of club government, literally in a Georgian townhouse, where good chaps, willing to ask their “stupid laddie questions” of civil servants and experts, even in language they are ashamed of when made public, is regarded as somehow enough and even something to aspire to. Covid showed all too painfully that it is not.

The practical benefit of co-production and co-design would have been to bring diverse lived experience and, where necessary, rebel voices into the room, people capable of speaking to elites as equals and without mediation. In a fast-moving emergency of this type, engagement can provide vital knowledge to government that will otherwise only be recognised after the damage is done.

Our seventh criticism concerns data. Even if obliged to plan from scratch, government could have known more about clinical and social risks earlier. It could have logged into communities and representative groups and been more intelligent about the consequences of its decisions. If data was Covid’s decision-making’s Achilles’ heel, we press again that not one witness has recognised that data collection and utilisation in this area is a human right of disabled people.

Gavin Freeguard summarised government reports over three decades, including 15 published since the UK signed the UN CRPD, none of which mention Article 31 of that convention, which requires the collection of data based on individual impairment and, contrary to Kemi Badenoch’s approach, understands the duty to collect data that relates disability to a range of other characteristics, including race, sex, gender, income and geography, in order to properly understand it.

This deficiency is still far from resolved. A July 2022 ONS paper found that the health service is still not collecting data on individual impairments and fails to take into account other social factors. All in all, in this country, especially for disabled people, we are in a state of ignorance by design.

The eighth criticism is that in fundamental ways disabled people were left without protection during Covid. Like others, the DPO focused on the care sector. It was not wrong to try to protect hospitals. What was wrong was to do so little to protect those in care in the name of protecting hospitals.

In their evidence, both Professors Van-Tam and Harris had to confront how obvious it would have been to any public health practitioners that mass release of hospital patients into care settings would create devastating consequences, both through patient infection and multiple movements of the workforce.

In addition, and in the situation as of mid-March 2020, neither saw any practical alternative because available facilities and structures offered none.

Then this week, despite the evidence of his own Minister for Care, the present Prime Minister sat here and failed to acknowledge that low pay drove care staff to work in multiple locations inadvertently spreading the virus, and that we say must change.

The DPO’s final criticism concerns pandemic economics and its deliberate failure to redistribute to those most in need. Mr Sunak, when Chancellor of the Exchequer, on 11 March 2020 made a promise “to support the most vulnerable people in the form of a safety net for those who could not work, whether they were ill themselves, or not at work, as they were self-isolating”. These words are revealing.

The safety net would only exist for those who had been able to work but were able to do so no longer. The provision of extra funding was to maintain the economic status quo for these people, to provide temporary assistance to what we referred to in our opening submissions as the politically idealised person under our contemporary economics, who is autonomous, independent and self-sufficient. There was no proper safety net for those deemed unproductive or recognition that those only just scraping by after a decade of cuts to benefits and services would face further financial hardship.

During the pandemic, 1.5 million bounce back loans worth £47 billion were provided to business. In contrast, Universal Credit was topped up by £20 a week but there was no top-up for those on legacy benefits and no top-up for carers’ allowance in England, despite demand on carers’ responsibility and time increasing sharply.

Helen MacNamara’s evidence referred to decision-makers often failing to see the human consequence of decisions. Covid economic policy involved a chronic failure of imagination and empathy; a failure to think through what it means if you or the person you care for can no longer get supermarket deliveries, so you have to go to your corner shop, which is more expensive; if you have to stay inside because public spaces are closed, so your heating bills go up; if you have to pay for taxis because public transport is unsafe.

In the early days of the pandemic, 100,000 unpaid carers were using food banks and 226,000 cut back on their food just to get by. That arose from governmental choice. Wales and Scotland made additional payments to unpaid carers during the pandemic. England did not. £67.25 per week for full-time unpaid care was apparently enough.

Where do these nine criticisms leave us?

First, it’s attempting to believe that replacement of bad leadership will necessarily lead to better outcomes. However, this disaster was a long time in the making. Our system of government, including Cabinet government, the civil service and the seriously outdated relationship between central and local government and civil society, could not handle this type of crisis. It was hubris to believe that it could, and it would be even greater hubris to think it can in the future.

Second, since the 1980s we have lacked a positive vision of the state in this country that we once had. We do not see it as a source of public good and, when it was called upon to be just that, surprisingly it faltered.

Finally, there is what Helen MacNamara has called a want of humanity as a feature of the bureaucratic mindset. The Covid saga reveals a dire confusion of values, and in the end begs the question of what we as a collective of people care about. Certainly for now, caring about caring and being cared for is not recognised as the primary value of social life and central principle of any form of good governance, but it should be. For disabled people, who know that the question on that whiteboard “Who will look after those who cannot survive alone?” was never answered, the imperative to care about caring and being cared for, for them is a fundamental one. Given that we are all vulnerable, born vulnerable, vulnerable at the end of life, and face vulnerability at any moment in our lives, we should all care about it too.

My Lady, what do these matters have to do with you, and why are they so relevant to this Inquiry fulfilling its function? With respect, you cannot just produce a brilliant chronology with intermittent criticisms. You hold a pen over the way we live and in substantial ways the way we can die.

Mention has been made that the Inquiry cannot be political or be expected to solve all manner of problems. We understand, but we have important final caveats.

Being non-political is being political when it takes the status quo as a given. It is political not to say anything in reporting about the extent to which inequalities, including their denial and diminishment, played a causative role in Covid’s outcomes.

Equally, declaring that one cannot change the world is a means of overlooking the ways in which you can. The resignation that these matters are too big for this Inquiry should never be accepted.

If not in this forum, despite the compelling expert and witness evidence which links negative Covid outcomes to chosen societal inequality, when or where could such matters truly be engaged with? That is what this Inquiry is particularly empowered to do, and should do. It must make the necessary findings and recommendations in the search for new governmental structures and values that were too often lacking in the Covid response.

My Lady, thank you.

Lady Hallett: Thank you, Mr Friedman.

I would be very grateful if everyone could avoid references to party politics. I appreciate politics generally have been playing a part, but not party politics, and of course I am totally bound by my terms of reference.

Who is next, Ms Fee, where are you? Ah, at the back. Got you.

Submissions on Behalf of the Executive Office of Northern Ireland by Ms Fee

Ms Fee: My Lady, may I first thank you and your team for kindly accommodating me to make my submissions today.

I appear for the Executive Office of Northern Ireland. I’m instructed by Joan MacElhatton of the Departmental Solicitor’s Office in Belfast, and I’m very grateful for the opportunity to make these observations to you today.

The Executive Office has watched closely the evidence of all the witnesses in this module and makes the following brief observations, trusting that these matters will be the subject of consideration during Module 2C in Belfast next April.

Firstly, my Lady, in relation to the extent of the involvement of the devolved administrations, in particular Northern Ireland, in decision-making by the UK Government, the Executive Office has some misgivings in relation to the impression that has been given by some witnesses to this module as to the extent of that participation by the devolved administrations, including Northern Ireland, in UK Government decision-making.

The Executive Office noted, for example, the evidence of Lord Lister, who said that he had regular meetings with the devolved administrations and undertook liaison with the Republic of Ireland, and therefore the Executive Office would seek clarity upon with whom Lord Lister is to have met, how the meetings were recorded, and the means by which the Northern Ireland Executive were appraised of those interactions, including with the Republic of Ireland.

The Executive Office heard evidence from Sir Mark Sedwill that decisions were taken within COBR together with the devolved administrations and that he ensured that formal decisions were taken within the ministerial implementation groups. However, he also said that Northern Ireland and the other devolved administrations were not at the MIGs as of right and were not always invited to attend.

Across all First Ministers of the devolved administrations, frustrations have been expressed with their role at COBR, which was viewed as a mere formality, in circumstances where decisions already made in Number 10 were announced, some already being announced beforehand. When attendance at COBR was replaced with CDL calls, the devolved administrations viewed those as perhaps more of an information sharing forum than a means by which they could properly participate in decision-making, which would impact all of the UK, or set a context for devolved decision-making.

The Executive Office heard the evidence that the devolved administrations apparently participated fully in the Covid action plan prepared by Cabinet Office at the start of March 2020. You also heard evidence from Matt Hancock, who asserted that whilst the plan was being worked up by his department throughout February no one actually saw the Covid action plan before 7pm on 27 February 2020. The devolved administrations were required to provide their input by 10 am the following day. Clarity is therefore sought on the true extent of that input and involvement.

Secondly, my Lady, in relation to the extent of Northern Ireland’s involvement in the expert and scientific groups, and I realise I may be echoing some of my learned friend Ms Campbell King’s Counsel’s submissions, but perhaps from a slightly different slant.

Sir Patrick Vallance gave evidence that he had regular meetings with the Chief Scientific Advisers from the devolved administrations, but that he had no contact with Northern Ireland’s Chief Scientific Adviser. It is a point to note, my Lady, the Northern Ireland Executive does not have a Chief Scientific Adviser, albeit the Chief Scientific Adviser for Northern Ireland’s Department of Health was at SAGE from 7 April 2020 and did attend Executive meetings from an early stage, alongside the Northern Ireland CMO.

Graham Medley from SPI-M gave evidence that he didn’t have any contact with Northern Ireland’s Chief Medical Officer, which he regretted, but for which he could give no reason.

Professor Sir Chris Whitty gave evidence that on issues of personal protective equipment, they were agreed on a four nations basis whereas, my Lady, this statement must clearly be explored later in future modules.

The Executive Office has heard the evidence that SAGE was the vehicle to get data to COBR, and apparently all government departments could and did attend SAGE to hear all the views. Professor Sir Chris Whitty also said there were other sources of scientific advice to inform decision-making, and clarification is therefore sought on what were those sources and how were they shared with the devolved administrations.

Professor Chris Whitty gave evidence that each of the four chief medical officers in each of the four nations advised their ministers to enter lockdown.

However, the Executive Office says this is contrary to other and conflicting sources of evidence, revealing that the collective view was that lockdown was needed and that was arrived at between 12 and 14 March, and the decision was then taken within Number 10 on Sunday 22 March and announced at COBR on 23 March.

There was no evidence about how the devolved administrations were alleged to have been involved or consulted upon that decision. My Lady, a precise timeline must be established.

In relation to SAGE itself, my Lady, Northern Ireland was not in attendance until 7 April, and SAGE secretariat incorrectly recorded Ian Young as Northern Ireland’s Chief Medical Officer throughout, as the Executive Office were not party to the SAGE papers or the debates or discussions until 7 April, and as only those sanitised minutes went to COBR and were not subject to any further challenge, the Executive Office notes that Northern Ireland must have been placed at a distinct disadvantage in that regard.

The result must have included lack of awareness of information – for example about human-to-human transmission – being discussed on 28 January, references perhaps to Professor Ferguson’s email to Number 10 on 10 March seeking faster paced measures, or updates to Number 10 on 10 March confirming an 8% mortality rate in Italy.

Could the SAGE minutes and the actions of UK Government – for example, on how safe it was for sports events to proceed, such as Cheltenham or that Liverpool match – be viewed as creating a different and unwarranted impression for devolved administrations who were not party to the debate within SAGE and around SAGE at that time, and who sought those assurances?

In relation to SAGE subgroups, Northern Ireland was represented at four of 39 SPI-M-O meetings, that’s about 10%. In relation to NERVTAG, Northern Ireland was not represented until January 2021, when Professor Stuart Elburn of Queen’s University Belfast attended.

In relation to the extraordinary NERVTAG SPI-M, no devolved administrations attended on 26 April 2020. Wales did attend eight of the 11 bird table meetings but never Northern Ireland. No devolved administrations were at the 12 clinical risk subgroup meetings, nor the four therapeutic subcommittee meetings.

On the available evidence as to attendees, Northern Ireland attended 49 of 81 ministerial implementation group meetings. My Lady, clarity is sought on how Northern Ireland was informed of or invited to such important meetings. It might be reasonable to say that Northern Ireland was not adequately represented at scientific or expert group meetings, or at least they could have been better included. Northern Ireland’s Chief Medical Officer has provided evidence that Northern Ireland does not have the capability to replicate those UK based groups, but it would also seem that Northern Ireland was not properly represented at them either.

My Lady, this issue will undoubtedly be considered in detail in Module 2C, including the mechanism by which a Northern Ireland department or the Northern Ireland Government representation is secured at those groups. The Inquiry has previously heard how there was no Northern Ireland representative at Exercise Alice in 2016. The mode of communication to the Northern Ireland Government may also be worthy of some consideration, in particular in the situation where there might be no ministers in place for considerable periods in Northern Ireland.

My Lady, turning to consideration of Northern Ireland and Republic of Ireland as a single epidemiological unit, Professor Sir Chris Whitty said the differing epidemiology of Northern Ireland was not a matter for SAGE. The Executive Office seeks clarification as to why it was not a matter for SAGE, given SAGE’s role as a UK-wide science adviser to COBR.

If it wasn’t a matter for SAGE, my Lady, who should have been considering the issue? The Executive Office wishes to explore whether a positive decision was taken to exclude the issue from SAGE’s remit, or whether insufficient or no consideration was given to this issue at all.

Related to that, my Lady, is my final issue in relation to consideration of Northern Ireland’s border. The Executive Office is live to the border issues as particular concern for the bereaved families and those affected from Northern Ireland. The Executive Office now seeks clarity on the position the UK Government took on matters engaging the border, the Common Travel Area, and other matters within its competence.

On 28 January 2020 SAGE wrote to Number 10 asking them to move to escalate this as a major issue across government, not just as previously within technical agencies housed within the Department of Health. At that time, the priority was to prevent the spread of the virus in the UK. SAGE recommended a change in the UK Government’s approach once triggers were reached. When pressed by my learned friend Mr Keith King’s Counsel as to what Professor Sir Chris Whitty meant UK Government should have been doing at that time, he replied:

“Well, the earliest things that would have to be considered – and they are not easy and we should really talk about them either seriously or not at all – are border measures which require a lot of thinking. They’ve got implications for trade, they’ve got implications for diplomacy, they’ve got implications for the economy, they’ve got implications for consular, et cetera, but that’s because one of your earliest things is to reduce the risk of importation.”

My Lady, the issue for clarification for Northern Ireland as to what extent the particularities of Northern Ireland and the Republic of Ireland and the border in Northern Ireland were considered by the UK Government during this early phase so as to reduce the risk of importation, particularly given the Northern Ireland/Republic of Ireland border, which is the only land border the UK has with the European Union. If international borders were recommended for discussion, what consideration if any was given to the Northern Ireland border?

My Lady, the above matters are not exhaustive, but the Executive Office hopes it is helpful to identify them at an earlier stage.

Thank you.

Lady Hallett: I’ll only just say this, Ms Fee: I’m afraid it’s not an early stage, it’s closing submissions for Module 2. You raise a number of questions, some of which will obviously be dealt with in more detail in 2C, but some of which we have already explored. And we’ve completed the oral evidence for 2 now, and I have no plans to re-open the oral evidence, and where you seek clarity on a number of issues that were meant to be explored in 2, I’m afraid the only possible answer is to look in the written evidence to see if that will assist you. Otherwise I’m afraid you may not get the answers that – perhaps questions should have been asked when the evidence was called.

Anyway, I leave matters there, and I think it’s now time to break for lunch. I think our stenographer has had a long morning with everyone trying to keep to their time limits, for which I’m very grateful.

We shall return at 1.45, and I think, Mr Menon, you’re first up.

(12.46 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Right. Mr Menon.

Submissions on Behalf of Save the Children UK, Just for Kids Law and the Children’s Rights Alliance for England by Mr Menon KC

Mr Menon: Thank you, my Lady.

In their authoritative critique of “Britain’s Battle with Coronavirus”, George Arbuthnott and Jonathan Calvert conclude that the handling of the pandemic by Boris Johnson’s government was one of Britain’s worst ever failures of state and political leadership.

This stark conclusion has been reinforced during the Module 2 hearings, as shocking, at times shameful evidence has been heard on core decision-making. It is inconceivable, we submit, on behalf of the children’s rights organisations we represent, Just for Kids Law, the Children’s Rights Alliance for England and Save the Children UK, that my Lady will conclude that the government’s response to the pandemic was anything other than deficient and dysfunctional in multiple respects.

As a nation, we literally sleepwalked into disaster, as over 230,000 people in the UK have tragically died from Covid. Our record in terms of excess mortality and deaths from Covid relative to population is one of the very worst amongst the world’s wealthier nations, notwithstanding Boris Johnson’s abject refusal to accept so and the heroic efforts of our grossly underfunded and under-resourced National Health Service.

It is irrefutable that so many deaths could have been prevented had our government acted more decisively, effectively and humanely at various stages of the pandemic in 2020 and 2021.

Understandably, the primary focus of Module 2 has been on the lessons that must be learnt if we are to avoid a similarly cataclysmic loss of life in a future pandemic. Nothing that we have raised in the questions we have asked witnesses, or raise now in our closing submissions, is intended to criticise that focus or deviate from it.

However, we trust the Inquiry will agree that, even though children were the least likely of any age group to die from Covid, the overall lasting impact of the pandemic and the government’s non-pharmaceutical interventions on children, particularly vulnerable children from lower income backgrounds, was damaging, even devastating, and that this important matter is also worthy of consideration by the Inquiry within its terms of reference.

Secondly, if Module 2 is going to investigate the impact of high level decision-making on the entire population, it would be wrong to ignore the over 14 million children who constitute nearly 25% of the population.

Thirdly, there is no need for the Inquiry to reinvent the wheel. There have been a plethora of published reports and studies that document the disproportionate and adverse impact of the pandemic and the government’s NPIs on children. The evidence is unequivocal and uncontentious. Nobody has suggested anything to the contrary.

As to the full extent of harm caused to children, we appreciate that this will be explored in greater detail by the Inquiry in 2025 during a later module on children and education. Nevertheless, my Lady, there are important unchallenged points that can properly be made at this stage about children and core decision-making for the purposes of the interim report which we understand the Inquiry intends to publish in 2024.

My Lady will appreciate that there is an urgent need for lessons to be learned quickly as to – the impact of the pandemic and the government’s NPIs continue to be felt by children in terms of, for example, cognitive developmental delays, educational inequality, and increased mental ill health. We urge you not to put children to the back of the queue by delaying all conclusions about children until the later module. We urge you to say as much as you possibly can about children in your interim report, to acknowledge their resilience and sacrifice.

Having made those introductory remarks, we now want to make some general observations about the evidence, then we want to focus on the two key issues that featured most in the evidence in terms of impact on children, namely school closures and social distancing restrictions, whilst acknowledging that children were also impacted by many other issues which the Inquiry has yet to explore, including the reduction in safeguarding protection for children in social care, the terrible conditions that children in custody had to endure, and the failure to classify children’s play as exercise.

Finally, we want to make some brief observations about children’s rights and their enforceability before concluding.

Turning to the evidence, the fact that children only featured to a limited extent in the 32 days of evidence during Module 2 is indicative of two key points we made in our opening submissions. Firstly, that children are a low political priority in an adult-centric Westminster, and often invisible as far as core decision-making is concerned, and, secondly, that this invisibility was exacerbated during the pandemic.

Indeed, the omission of any mention of children in the Inquiry’s original terms of reference drafted by the government, an omission that was only corrected following a public consultation, adds further weight to the concerns of children’s rights organisations about how children are often neglected and forgotten by those in power. As does the evidence of Helen MacNamara, the former Deputy Cabinet Secretary, who specifically used the word “invisibility” when describing the government not properly considering the interests of children.

The witnesses who had the most to say about children were Professor David Taylor-Robinson, who gave evidence about childhood health inequality pre-pandemic, the importance of play for children and the impact of isolation on children’s development, and Anne Longfield, the former Children’s Commissioner for England, who gave evidence about the impact of the government’s NPIs during the pandemic on children.

We do not have time now to elaborate on their evidence, but will do so in our written closing submissions. Suffice to say that we trust my Lady will give their compelling evidence the weight it deserves when considering what the decision-makers should have done better.

Another key issue for my Lady will be the extent to which you conclude that the government’s response to the pandemic was affected by maverick personalities at the heart of government, including Boris Johnson himself. Whilst we do not discount the pernicious influence of Downing Street’s toxic culture and lack of diversity, merely eliminating these problems will not embed the change that is necessary to avoid another deficient and dysfunctional pandemic response. Far greater structural change is needed than that.

Consequently, whilst we recognise that the emails, WhatsApp messages and diary entries provide a unique, contemporaneous insight into what powerful individuals believed privately, as opposed to what they proclaimed publicly, we ask my Lady not to allow this material that has attracted enormous media attention to assume undue importance and distract my Lady from the more fundamental systemic problems that plagued the government’s response to the pandemic.

To be blunt, it was the barrel that was rotten and not just the odd apple.

In this regard, the evidence of the key political decision-makers, Michael Gove, Matt Hancock, Boris Johnson and Rishi Sunak, was telling: lots of smoke and mirrors, lots of diplomatic non-answers, lots of blaming others, lots of “I cannot remember”. Whilst it’s entirely a matter for you, my Lady, we say all four were unconvincing. They gave insincere apologies, they were primarily interested in defending their own reputations, they were quick even when admitting a mistake to fall back on an excuse or qualification that sought to deflect responsibility on to the scientists, or suggest that it is easy to be wise after the fact. It was all so unsatisfactory.

Our focus now will be on Michael Gove and Boris Johnson, as they were particularly relevant as far as children are concerned.

Michael Gove was prone to digressing and answering a totally different question to the one he was asked. On one occasion when he went off on another tangent, Mr Keith understandably got irritated, interrupted him and tried to reign him in. My Lady had to intervene to calm things down.

On another occasion, Mr Gove told Mr Keith that he was concerned that the government did not pay enough attention to the impact on children of some of its measures. However, when I asked him for an example of such a measure, he changed the goalposts and spoke instead of the uncomfortable trade-offs that the government had to make to avoid the NHS being overwhelmed. I also asked Mr Gove who in the Cabinet had primary responsibility to consider the impact of NPIs on children. His answer was everybody was concerned about children.

My Lady, it is not and has never been our contention, regardless of our criticism of government, that nobody in government cared about children. Our criticism is that in the myriad of complex decisions that must inevitably be made during a crisis, it is easy for government to take an adult-centric approach, resulting in children being marginalised. If children are everybody’s responsibility, as Mr Gove intimated, they’re effectively nobody’s priority. That is the problem.

Boris Johnson, although reluctant during his evidence to take responsibility for many of the more glaring mistakes that were made by his government during the pandemic, did make three significant concessions in answer to my questions. Firstly, he confirmed that he had recognised in March 2020, as opposed to with the benefit of hindsight, that school closures were very damaging for children, particularly children from lower income backgrounds, in terms of their development, socialisation, educational attainment, life chances, physical health and psychological wellbeing.

Secondly, he accepted that the government was unprepared in March 2020 for schools to be closed for as long as they were.

Thirdly, he acknowledged that although children have fewer health risks from Covid than adults, particularly older and more vulnerable adults, they suffered disproportionately from the government’s NPIs, both in the short and the long term.

Unfortunately, Mr Johnson’s government failed to learn the necessary lessons from the first wave of the pandemic and the first lockdown, and the consequences were dire, as we now know, in terms of further waves of infection and death, further lockdowns, and further school closures.

This was perhaps the government’s greatest failing.

Finally, no summary of the evidence in respect of children would be complete without a postscript on Rishi Sunak and his evasive evidence about the campaign for free school meals during the holidays, spearheaded by Marcus Rashford. Mr Sunak was keen, when questioned by Mr Keith, to disassociate himself from the entry in Sir Patrick Vallance’s diary for 13 June 2021 that Mr Sunak and the Chief Whip had said “Good working people pay for their children to eat and don’t want freeloaders”.

However, when I asked him what his view in 2020 was on the government funding free school meals, he said he could not recall. When I asked him whether in June 2021 he was opposed to free school meals, he again said he could not recall. And yet it is a matter of public record that in October 2020 Rishi Sunak voted against free school meals during the holidays in the House of Commons, as did Boris Johnson, Matt Hancock and Michael Gove.

What is perhaps more controversial, we appreciate, of course, is the alleged “freeloader” comment, and whether the Government Chief Scientific Adviser has accurately portrayed in his diary the true sentiments expressed by Mr Sunak on this matter.

Lady Hallett: I’m going to stop you there, Mr Menon. This is not an issue that we explored in any great detail. You had permission to ask the questions that you asked, but as far as this module is concerned, I’m afraid I’m going to stop you. This is bordering on becoming party political and I think I’ve made my position perfectly plain. Could you please move to what is your next point.

Mr Menon: I’m moving on.

Turning next to the vexed topic of school closures, I wish to make it clear that we are not advocating a libertarian position that schools should never be closed for most children during a crisis. On the contrary, it is the duty of a responsible government to close schools as a last resort, if such a radical intervention is necessary to save lives. Indeed, given the absence in the UK in March 2020 of any system of mass testing, robust contact tracing and strict isolation of those with Covid, the government had little choice but to close schools as the number of Covid infections and deaths began to raise dramatically. In fact, if schools had been closed a few weeks earlier than they were, it is likely that they could have re-opened earlier, perhaps in May or June, as opposed to in September.

The primary problem in respect of school closures in March 2020 is that there was no proper plan, no clearly established framework, no guidance for schools on remote education, and no arrangements in place for delivering face-to-face education to vulnerable children and the children of key workers under the new social distancing restrictions. And then, to make matters worse, despite the valiant efforts of schools and teachers, the government failed to implement measures that sufficiently mitigated the widespread harm caused to children by the closure of schools and the cancellation of exams.

Instead of schools being the first to re-open after the first lockdown, they were the last to re-open, precedence being given to non-essential retail, hospitality and cultural venues.

Rishi Sunak was plainly wrong when he told the Inquiry that schools re-opened before hospitality. Only certain year groups went back to school in June, before hospitality re-opened in July. Most children only returned to school in September.

If the government had not been reckless after the first lockdown by easing restrictions for economic reasons that inevitably sparked a second wave of infection and death, it is likely that schools would not have had to be closed for a second time in January 2021, thus compounding the enduring harm caused to children.

Even those who might be forgiving of the government for its inaction and complacency in early 2020 on the grounds that Covid was a largely unknown virus would struggle to find any excuse for the failure of the government to learn lessons from the increased scientific knowledge available by the autumn of 2020 and make contingency plans in case schools had to be closed again.

It was an utter shambles when schools opened for a day on 4 January 2021 before closing the very next day for three months, and exams were cancelled for a second year.

It was not just school closures that caused harm to children. The failure of the government to exempt younger children in England from the social distancing restrictions in the summer of 2020, as Scotland did in July for children under 12 and Wales did in September for children under 11, caused additional harm to younger children.

Anne Longfield was calling for younger children to be exempt. Children’s rights organisations and child psychologists in England were calling for younger children to be exempt. Yet when I asked Michael Gove, Matt Hancock and Boris Johnson about this, none of them could give a credible answer as to why England followed a more draconian approach towards children in Scotland and Wales.

Furthermore, it was unclear whether any of them even appreciated that the social distancing restrictions in England disproportionately affected younger children, who could not leave their homes unsupervised.

Michael Gove seemed to say it was because the government would have been advised by the CMO, the GCSA or others that children could spread Covid as easily as adults, including asymptomatically, however he could not recall who specifically provided the relevant scientific advice.

Furthermore, whilst claiming to be worried about children transmitting Covid whilst playing outside with their friends, he did not apparently have similar concerns about adults transmitting Covid while hunting, shooting or playing an outdoor sport.

Matt Hancock said that although consideration was given to exempting younger children from the restrictions, the government decided against it because clinicians raised concerns about increased transmission between children from different households playing with each other and between the adults who were supervising the children. When I asked him which clinicians, as the Inquiry has heard no confirmation from a non-politician about such concerns, Mr Hancock said he recalled a conversation with the CMO and a WhatsApp message in which the CMO expressed concerns about parents on the touchline. This will be a matter that my Lady will wish to explore in the future module on children and education, but for present purposes we have been unable to locate any evidence to support Mr Hancock’s contention.

Boris Johnson said he would have to look back at the discussions but his instinct was that the government wanted to minimise the risk of transmission. When I pressed him as to why England had taken a divergent approach to Scotland and Wales, he said, “I’m not certain in future we would want to do it that way”.

The Inquiry may wish to explore in Modules 2A and 2B whether there is any evidence that Scotland and Wales exempting children from their social distancing restrictions increased the transmission of Covid. We are unaware of any such evidence.

Turning then to children’s rights and their enforceability, this is a huge topic which we will develop further in our written closing submissions. The short point we wish to make now is that although children have rights and not just interests under UK and international law, these rights were insufficiently considered by high-level political decision-makers during the pandemic. Consequently many children were deprived of their right to education, their right to play and their right to live free from harm. To recover, they need far more support than they are currently receiving from the state to redress the years of lost learning, lost freedoms and lost hope, and they need the enforceability of their rights to be placed on a statutory footing.

In conclusion, my Lady, we return to the nine recommendations which we set out in our written opening submissions and which we will address in detail in our written closing submissions, but do not repeat now given the time constraints.

The children’s rights organisations we represent have given great thought to what fundamental structural changes are necessary for children not to be neglected again in a future crisis. Their recommendations, which we commend to you, my Lady, seek to fix the underlying causes of the mistakes made during the Covid pandemic, as opposed to making blanket recommendations on specific issues that may be irrelevant in a future crisis that is very different from the Covid pandemic.

If followed and implemented, the recommendations will ensure, we submit, that children’s rights are embedded in future decision-making, the government fully takes the best interests of children into account, the Covid generation of children is properly supported, and their contribution to overcoming the pandemic is honoured.

We must, as a nation, take decisive action now to prevent a generation of children and young people being defined forever by their experience of the Covid pandemic.

Thank you.

Lady Hallett: Thank you very much, Mr Menon.

As you’ve acknowledged but I’m going to repeat, I’ve said it before, I very much intend to ensure that the impact on children is fully investigated. It will be at a different level in this module, but, as you know, later in the Inquiry we’ll make sure that they are properly covered.

So thank you.

Ms Davies, oh, there you are.

Submissions on Behalf of Solace Women’s Aid and Southall Black Sisters by Ms Davies KC

Ms Davies: Thank you very much, my Lady, thank you.

As you know, my Lady, I appear for Southall Black Sisters and Solace Women’s Aid, together with Marina Sergides, Fatima Jichi, Ubah Dirie, and Angharad Monk, and we’re instructed by Public Interest Law Centre.

My Lady, we know that there was a rise in domestic abuse in 2020, and we know that rise was foreseen and was a direct result of the NPIs implemented by government. So the issue is not what the government did, but what it failed to do and what it could and should have done to make a material difference to victims, predominantly women, experiencing domestic abuse.

We say there were five main failures: a failure to be prepared well in advance of the first lockdown; a failure to get the messaging right, despite requests; a failure to consider, let alone implement, an exception to the regulations that would have allowed people to provide a safe place to those fleeing domestic abuse; a failure to ensure that all victims of domestic abuse had access to support when the government refused to suspend no recourse to public funds; and a failure to learn lessons from the first lockdown when it came to the second and third lockdown.

In terms of what was done, namely funding to frontline services and holding the Hidden Harms summit, we say that this was too little and too late. Whilst the “You Are Not Alone” campaign by the Home Office was a welcome move, it was late, relatively short lived, and without parallel messaging from the whole of government its impact was lost.

Underlying all these failures, we say, was a failure to consult early on with the domestic abuse sector as to what they needed.

My Lady, the background to these failures is a culture of either indifference or, as you have heard, misogyny at the very heart of government. But that in itself, whilst shocking and leading to narrow decision-making, is not a sufficient explanation. Government as a whole has responsibility for tackling domestic abuse. That responsibility lies primarily with the Home Office, but also with what was then the Ministry of Housing, Communities and Local Government, MHCLG, and the Ministry of Justice.

None of those departments anticipated the rise in domestic abuse or the need to plan for it, they all reacted too late. And that shows a lack of attention to domestic abuse, an indifference to domestic abuse at a corporate level, not solely explained by the misogyny and indifference which we’ve seen from central senior decision-makers. It is an institutional failure which led to many women facing two risks to their health: from Covid and from domestic abuse. And indeed, in the case of women subject to no recourse to public funds, three risks, because they also faced destitution.

We say that for future pandemics government must consult at an early stage with the domestic abuse sector and must include domestic abuse in its pandemic planning.

My Lady, you heard oral testimony from Rebecca Goshawk from Solace Women’s Aid and you have written evidence from her and from Hannana Siddiqui from Southall Black Sisters. Some personal accounts from women are contained in the two witness statements and in the aptly named report, exhibited in the witness statements from Solace Women’s Aid, “When I needed you to protect me, you gave him more power instead”.

Let me read just two of those accounts of what life was like in the double prison of lockdown and of domestic abuse.

Raina, whose story is in Hannana Siddiqui’s witness statement, says:

“It was most horrible at the time. I was always inside the house. He never let me go to the park for a walk. He did leave the house to go for a walk. I was 24/7 inside the house confined to my room. Even using the washroom and kitchen was a task for me. I took one of my kids in the kitchen so I could cook in peace.”

Pausing, because otherwise she would have been abused while cooking.

“I didn’t have a choice, for the whole of Covid … I was only confined to my room. I became mute, I was so depressed, and I didn’t feel like talking.

“There were constant fights because of him being around all the time. It made me so anxious, I was living in a nightmare without end. Covid for me was a nightmare.”

He refused to let her use her phone, and to emphasise the triple abuse experienced by women who are migrants:

“All my documents were with him. Till date my passport and everything is with him. My and my son’s – he hasn’t given them to us.”

The second account is in “When I needed you to protect me”, and makes the point that abuse increased partly because of the physical restriction of lockdown but also because abusers turned their fear of the virus against women:

“When the Covid-19 pandemic began, her perpetrator insisted on her isolating in her room for a week after being outside of the house for ‘mere minutes’. Later, he ‘assaulted me to get me out of the kitchen because he didn’t want me to be around the food that he’d just cooked… I told him how scared I was, he didn’t care, you know. He just saw me as an object’.”

We know from Goshawk and Siddiqui and the documents they produce, including the call for evidence from another 12 domestic abuse organisations exhibited to Siddiqui’s statement, that there was an extraordinary increase in demand for domestic abuse services, that traditional methods to find support, such as speaking privately with GPs at medical appointments, were not available. There was not the school support or social worker visiting. It was difficult to access statutory services such as homelessness or social services. And of course women could not stay with or even visit family or friends.

We also know that the nature of domestic abuse worsened during lockdown, more women reported the use of weapons, including knives. Women describe being locked in bathrooms or bedrooms as home, as you’ve just heard. They describe being prevented from using phones or computers to communicate, so they were cut off from their family and friends, something which is deeply controlling and, in lockdown, is deeply isolating. So lockdown was a lonely, frightening and dangerous experience.

The domestic abuse sector was having to deal with the extra demand and the additional complexity of cases in circumstances where their funding had been substantially cut over the previous ten years, leaving many of them operating on a shoestring and with the most serious cuts made to the smaller providers, including the by and for providers, mainly those by and for black and ethnic minority women, together of course with having to reorganise their service provision so that workers could work from home and could support their frontline workers, who were managing their own health, households and their crucial work.

My Lady, the rise in domestic abuse and in the intensity of abuse experienced is still being witnessed and dealt with by the domestic abuse sector today. The impact of domestic abuse does not end when lockdown ends or even when the pandemic ends.

Let me turn to the five failures.

The first failure, failure to be prepared in advance of the first lockdown. The evidence has shown that an increase in domestic abuse was not just foreseeable but was actually foreseen once social isolation and lockdown were contemplated. You have that from accounts in the press from other countries, from Martin Hewitt’s evidence that it was self-evident that lockdown was going to put vulnerable people at risk, and from Dame Jenny Harries, who was aware that women were calling helplines once lockdown was anticipated, even before it was implemented.

We also know that government was warned by mid-March, domestic abuse charities were campaigning about the risk of increasing domestic abuse. On 19 March the Victims’ Commissioner and the Equality and Human Rights Commission both wrote to the Prime Minister and the Domestic Abuse Commissioner wrote to the Chancellor of the Exchequer. They warned of the likely increase in domestic abuse and asked for increase funding to meet this anticipated surge in demand. And it seems to have been those letters, together with the more public campaign, that sparked the Home Office and MHCLG into some action, and we know that from two memos which are the first documents referring to the need for government assistance, particularly funding and messaging. They’re on 25 March, within the MHCLG, and on 26 March a memo from Home Office officials to the Home Secretary and the Minister for Safeguarding.

So that’s when government starts to plan: two to three days after full lockdown is announced and implemented, ten days after social isolation is recommended on 16 March, a month from 28 February when government departments are told to plan for the pandemic, or early March when the scientists start to talk about suppression.

You heard Dame Priti Patel’s evidence that she and Martin Hewitt were regularly discussing domestic abuse from early March. That may be the case, we don’t have the notes of those meetings, but if they were, the delay in not starting to formulate a plan until 26 March is even more concerning.

Second failure, lack of consistent and clear messaging. Clarity of messaging is an important part of NPIs. Boris Johnson said messaging was the most important tool we had to deal with the virus. The regulations, including the exemptions to the stay-at-home requirement, needed to be clearly and consistently communicated. Very soon into lockdown, the domestic abuse sector was concerned that it was not clear that women at risk of domestic abuse could leave. The Domestic Abuse Commissioner made that point on the Today programme on 31 March. The Home Office took some steps, Dame Priti wrote in the Mail on Sunday on 29 March, the “You Are Not Alone” campaign was launched on 11 April, when Dame Priti and Martin Hewitt did the daily press briefing at Downing Street.

But we say that the message was not explicit enough. The guidance used a phrase from the regulations, “escape risk of injury or harm” and did not specifically mention domestic abuse. We say it should have done and should also have made it clear that women leaving in those circumstances could take their children.

Dame Jenny Harries said in evidence:

“… I’m not sure that if I was somebody frightened, you know, in a domestic abuse situation and about to go into lockdown, that I would perhaps have clocked that the message that says ‘for an emergency’ actually applied to me.”

We say the most egregious failure of messaging was a lack of consistency across government, and notably in the Prime Minister and Deputy Prime Minister’s addresses to the nation when announcing lockdown or the continuation of lockdowns.

My Lady, you’ve heard that none of the Prime Minister’s four addresses during 2020 announcing lockdown mentioned domestic abuse as a lawful reason to leave home.

On 23 March he listed four exceptions, none referring to the risk of injury or harm, and he compounded that omission by saying “That’s all – these are the only reasons [why] you should leave your home”. He finally mentioned domestic abuse on 4 January 2021, after an adviser had flagged up that afternoon that his speech should make it clear, saying “We get kicked every time for not saying it”.

Dominic Raab’s response when asked why domestic abuse was not limited was that there was limited time. We say that is dismissive, an additional short sentence takes a couple of seconds.

Boris Johnson, on the other hand, said that in retrospect it probably should have been made explicit. Dame Priti Patel’s evidence was that she and her department had raised the issue with Boris Johnson. He did not remember her raising it.

In short, while messaging was developed by the Home Office, it was done so under pressure and was late. The regulations and guidance were not sufficiently clear, and government messaging, particularly the important addresses from the Prime Minister, was not consistent.

The third failure, a gap in the regulations. Matt Hancock confirmed that the exemption to the requirement to stay at home, that a person could leave if they were victim of crime or at risk of injury or harm, was intended to include domestic abuse.

We say that a parallel position to which no thought was given was equally necessary. That parallel position is through an exemption to permit friends or family to offer a person escaping abuse a temporary place to stay, an informal safe haven.

My Lady, you’ve heard our point that this is something that is normal, a sister or mother or friend offers a spare room or sofa. It was all the more necessary in lockdown given that refuges were at capacity and were turning women away.

Hancock’s evidence was that had such a proposal been put to him he would have seriously considered it and would have been inclined to agree. We recognise that this proposal requires scientific advice but we do suggest that for future pandemics the opportunity of an individual providing a temporary place to stay to someone escaping abuse is at least considered.

The fourth failure, not protecting migrant women subject to domestic abuse. You have the point, my Lady, that those subject to no recourse to public funds who were being abused underwent a triple lock of domestic abuse, of lockdown and of the structural barriers to leaving, in the form of destitution. These women have no access to welfare benefits or housing and homelessness assistance.

At a time of public health emergency the humanitarian measure would have been to suspend NRPF, so that women fleeing domestic abuse could know that they would not be destitute, they could claim welfare benefits, have the opportunity of a refuge place or obtain homelessness assistance from the council.

Government was lobbied extensively to suspend NRPF during the pandemic, not just from the domestic abuse sector but also from the Mayor of London, Labour and SNP MPs, the Domestic Abuse and Victims’ Commissioners, the Local Government Association and Liberty. Despite that, Government took a clear policy decision not to suspend NRPF.

Dame Priti’s response, when we asked her, was to say that it was legally challenging to suspend and then to go back and reinstate. We say that government took several extraordinary steps in the pandemic for public health reasons, not least the Everyone In instruction that all those sleeping rough should be given emergency accommodation regardless of immigration status. It cannot have been beyond government to take this step.

Deciding not to suspend NRPF, we say, was not a legal decision, it was a political decision, it was part of the government’s “hostile environment”, which it was not willing to compromise on even during a public health emergency.

Before I turn to the fifth failure, let me deal with the issue of funding for refuges and other domestic abuse support services.

Government was extensively lobbied from the end of March and throughout April, not just by the domestic abuse sector but also by the Domestic Abuse Commissioner, the Mayor of London and others for additional funding. On 27 April a month into lockdown there were three significant events: the House of Commons Home Affairs Committee issued a devastating report on Home Office preparedness for coronavirus domestic abuse and the risks of harm within the home. And I say that not to impeach or question it but simply to refer to its publicly available contents.

Public Interest Law Centre, acting on behalf of Southall Black Sisters and Solace Women’s Aid, sent a letter before claim to the MHCLG threatening judicial review, and over 750 people sent emails to Priti Patel and Robert Jenrick.

The Home Office had provided £2 million on 11 April when it launched its “You Are Not Alone” campaign but more substantial funding was not announced until 2 May when £76 million was announced of which £27 million was earmarked for the domestic abuse sector.

We say that announcement was a direct result of campaigning by the domestic abuse sector, of the threat of legal action and of the Home Affairs Committee’s report. We asked Dame Priti about that, particularly the threat of legal action, and she said she could not give a categorical response. We do note, and we’ll give you details in our written submissions, of an MHCLG submission to the minister on 5 May which refers explicitly to the threat of judicial review.

Even that money announced on 2 May did not start to be allocated until 19 June, and only came through around July. The point is, my Lady, that although funding was requested before lockdown started, from 19 March, it did not reach domestic abuse organisations during the first lockdown at all, in March, April, May or June, and so those organisations, already chronically underfunded from ten years of austerity cuts, spent the whole of the first lockdown struggling with unprecedented demand and insufficient resources. And I should add that domestic abuse workers were not automatically treated as key workers, they faced struggles for PPE, testing and even access to early vaccination.

The fifth and final failure, my Lady, is the failure to learn lessons from the first lockdown. Boris Johnson made a point in his witness statement of saying that lessons had been learned, specifically about domestic abuse and child abuse, and the government wanted to ensure that services supporting women and children remained available and steps were taken to tackle these crimes. When asked what steps were taken, he responded with the Ask for ANI scheme, which came into effect in February 2021, and the Domestic Abuse Bill.

While what is now the Domestic Abuse Act is very welcome, it did not receive Royal Assent until April 2021, and only started to come into force from July 2021, and so it is not an answer to what steps were taken to protect women during the second and third lockdowns from the first lockdown. Lessons were not learned by government from the first lockdown.

My Lady, we will submit detailed recommendations for you in our written submissions, but we say that, crucially, government failed to consult early on with the violence against women and girls sector, and that was a mistake that should not be repeated in the future.

Above all, my Lady, in another pandemic, victims of domestic abuse should not be left without support, isolated, lonely, frightened and abused. And preventing that abuse needs to be a government priority and not an afterthought.

Thank you, my Lady.

Lady Hallett: Thank you very much, Ms Davies.

Right, it’s now Mr Jacobs.

Submissions on Behalf of the Trades Union Congress by Mr Jacobs

Mr Jacobs: Thank you, my Lady. These are the closing submissions on behalf of the Trades Union Congress. I appear with Ms Ruby Peacock and we are instructed by Thompsons Solicitors.

In this module the TUC is working in partnership with the Welsh TUC, the Scottish TUC and the Northern Ireland Committee of the Irish Congress of Trade Unions.

The TUC and its sister organisations seek to be the voice of those at work. That has been our aim in this module, and will be the focus of our closing submissions.

My Lady, by way of preliminary observation, the themes upon which we will address you will be familiar. Centrally, we suggest that the themes of our previous submissions to you, as to disproportionate impacts in the workplace, as to financial support for self-isolation, as to paucity of consultation and so on, have only been strengthened by the evidence as it has emerged.

There is a wealth of evidence as to occupational exposure being a significant risk factor in the transmission of the virus, and of occupational exposure intersecting with socioeconomic inequalities. Independent SAGE reported that people in the lowest paid occupations are twice as likely as those in higher occupational groups to die from Covid-19. Professor Ferguson explained that the poorest in society had the least ability to comply with measures to work from home and were most exposed to the virus.

The documents which record high-level decision-making do refer on numerous occasions to the particular impact on vulnerable groups of certain sectors being closed, retail and hospitality being often cited examples. That was certainly an important consideration. Jobs and livelihoods are fundamental to wellbeing.

The blind spot, we say, was a lack of focus on safety for those who were attending work. Disproportionate transmission and deaths within vulnerable groups arose ultimately in those who were attending work rather than those who were not.

It is right to acknowledge that some of the causes of unsafe workplaces are structural and pre-existing. As considered in Module 1, stretched health services and stretched and fragmented social care services are a fault line. More broadly, we have described before the relevance of a working population that has a growing proportion in low income work and in insecure work. That view finds strong support in the work of the SAGE Ethnicity Subgroup which is before you in this module.

We also mention again, in brief passing, the pre-existing paucity of health and safety enforcement by an underfunded HSE and overburdened local authorities. The Inquiry has now heard evidence of the government grappling after the first lockdown with the difficult balance of returning to work within the R budget. Safe workplaces would have made the aim of returning to work so much more achievable and less deadly. In the event, the return to work was managed against a vacuum of enforcement. We remind you, my Lady, of our view that it is an important issue for future modules in this Inquiry.

An issue that this module has grappled with is financial support for self-isolation. The context is one of low sick pay provision. As the Chancellor was briefed during the pandemic by his advisers within the Treasury, the UK has the lowest sick pay provision amongst all OECD countries. This issue was alluded to in oral evidence by Mr Hancock, who spoke of his own wish that statutory sick pay be doubled.

When the pandemic arrived, the inadequacy of sick pay provision provided the most obvious disincentive to compliance with self-isolation, particularly amongst low income and vulnerable groups.

Of course those we represent campaigned vociferously on the issue, but it is now apparent that a number close to the centre of government were making the very same call for action. Several witnesses it appears to us have spoken quite passionately about the issue they were struck by the comparatively disadvantaged experiences of those on poorer incomes who were working at greater risk to keep the country going.

The assiduously diplomatic Professor Whitty described heated debate on the issue. It is evident that there was a real roadblock, namely the Treasury, and the Chancellor in particular, that is particularly evident in Sir Patrick’s diaries, not least in the reference to Simon Case’s advice given to the Prime Minister that he will need to persuade Rishi personally.

Mr Sunak’s oral evidence that financial support for self-isolation was not relevant early in the pandemic, as test and trace had not got going, was revealing. For the many thousands in low-paid, high-risk jobs who never stopped working, self-isolation was a crucially important safety measure from day one onwards, but one that was hugely difficult without support. It is evident that it is an issue that was still not grasped.

The justification by the Treasury for its opposition to greater support is with reference to survey data which suggested that return to work was just one reason for non-compliance.

My Lady, breaking self-isolation to attend work was high consequence in terms of transmission of the virus, particularly for low-income sectors with high vulnerability. Someone attending to a production line in a processing plant because they are worried about the rent is highly problematic and needs addressing. And the fact that some others may break self-isolation in different ways for some other reason is really neither here nor there. We suggest that on analysis the Treasury rationale is paper thin.

The Treasury did reluctantly agree to provide funds to the Test and Trace Support Payment scheme, however it was devised to be a low profile scheme with a low take-up rate, and so it proved to be.

Safety at work was also hampered by a lack of meaningful consultation with sectoral partners, including unions. The evidence of those we represent is that there was some attempt at consultation but it was perceived to fall short of meaningful engagement. The disclosure indicates that the government, at its core, was one that was dismissive of mature engagement.

It is pithily summarised by Mr Johnson having stated, in the context of decision-making on return to work, that the government “can’t have the bollocks of consulting with employees and trade unions”.

When put to Mr Johnson, he said the sentiment isn’t necessarily that of a Prime Minister engendering a dismissive approach to consultation. We say, what farcical nonsense.

There are numerous examples of this approach festering through government decision-making, whether it’s resistance to making any meaningful changes to sick pay or viewing schools as a battleground with the unions.

The lack of consultation also had an impact upon the quality of workplace guidance. We make no apology for being a broken record on this issue. For all the abstract acknowledgement of disproportionate impacts which are so easy to state, it is ultimately in concrete measures such as those in relation to workplace safety that solutions can be found. All too often workplace guidance was late, lacking in understanding of the practical realities of workplaces, and too discretionary and too generic.

In April 2020, Andy Burnham and Steve Rotherham wrote to Alok Sharma to urge his department to provide greater clarity in the guidance, and they warned that on social media it was awash with stories and images from unsafe workplaces, and the mayoral offices were receiving hundreds of reports of guidance being flouted.

My Lady, the resistance to consultation and dialogue fits a broad pattern. It is also reflected in the evidence given by those in local government, including the metro mayors, by those in respect of the devolved administrations, and by the Children’s Commissioner. This morning Mr Friedman spoke powerfully on this very issue in respect of the disabled. It is a symptom, we would suggest, of what Helen MacNamara’s internal review reported, that many felt there was a belief that intellect will out, implying that a small core of people is clever enough to think their way out of the problem without support; diversity of thought was not recognised. A vitally important lesson, we say, is the need for a mature, open form of government.

Another neglected aspect of workplace safety arose out of the movement of staff between care homes. Carl Heneghan gave evidence that Covid was identified as three-fold higher in staff working across different care homes. The failure to grapple with this issue at an early stage in the pandemic not only seeded the pandemic in the most vulnerable section of the population but also contributed to the unequal impact, given the profile not only of those reliant on the sector but also of the care sector workforce.

It is clearly an issue that needs to be grappled with in future pandemic planning.

We address distinctly decision-making in respect of education. The outcomes were undeniably poor. If a central aim was to keep schools open, the attempts to do so resulted ultimately in the very lengthy restrictions on attendance commencing in January 2021.

For the purposes of this module, it is evident that poor outcomes were symptoms of significant flaws in the decision-making processes within central government.

Coming out of the first lockdown, there was a need for careful and advanced thinking as to how re-opening schools might be managed whilst keeping the R rate below 1. As Mr Johnson expressed, schools were terrific reservoirs of the virus.

At a Covid-O meeting on 6 August 2020, the Department for Education presented an options paper on return to school. It might have been more ambitious in respect of its considerations of NPIs within schools, but it did consider contingencies such as local closures and rotas with the necessary advance notice to schools. Consideration was also given to managing the opening of schools within the overall R budget, and the decisions that may need to be made about other sectors in order to allow schools to stay open safely. That goes to a point raised by Mr Menon just a few moments ago.

The Prime Minister’s response as recorded in Sir Patrick’s diary was an emphatic rejection of those contingencies:

“… ‘Don’t want to hear about plan B and C for failure … We are no longer taking this Covid excuse stuff. Get back to school’.”

My Lady, these were not simply flippant comments, they were the policy. The formal minute of the same meeting was to the same effect. It recorded the point being made that “schools should not be told of a fallback plan as it would allow them to have an excuse not to open in September”, and “explicit contingency plan guidance for schools should not be shared in advance to avoid undermining momentum towards a full re-opening”.

It was hopeless as an approach, given the obvious cause for caution going into the winter. It was also a callous way to treat teachers, who were, as a matter of intentional government policy, left guessing as to what any contingency planning might be and leaving them to respond on the hoof as and when late changes of the course of action were announced.

My Lady, it was not by accident, it was by design.

The ramifications of the no plan B approach were numerous, but they will no doubt be considered in the subsequent module on education.

The quality of decision-making appears to have been further hampered by a relationship with the sector and unions in particular that not only lacked constructive collaboration but was positively oppositional.

In questions to Mr Johnson, we asked about the policy on face masks in schools, which was obviously considered privately to be a mess, and which had been arrived at further, according to Simon Case, to a no surrender approach of Gavin Williamson to unions, for which he had full backing from the PM.

My Lady, we conclude with two more general points, the first being the culture in Westminster.

There is a narrative pushed by some external to this Inquiry of the infighting spreading from Number 10 in particular being titillating evidence but ultimately irrelevant.

My Lady, we don’t agree. On analysis, there are various ways in which the corrosive culture impaired and frustrated decision-making. We see key ministers being sidelined from decision-making processes, an unwillingness of civil servants to step into key roles, voices of senior civil servants being sidelined, and so on.

Mr Johnson appears to have presided over and either promoted or certainly acquiesced in that culture. We were struck, as Ms Mitchell on behalf of the Scottish Covid Bereaved were, by the words of Mr Johnson in a WhatsApp when finally he complained to Mr Cummings of “a totally disgusting orgy of narcissism by a government that should be solving a national crisis”.

My Lady, hear, hear.

That was the honest assessment of Mr Johnson at the time. It was the correct assessment. To some witnesses it is just Westminster. We would suggest that resigned acceptance by some of such behaviour simply underlines the need for this Inquiry to make strident findings on the issue, and in doing so to seek to effect much needed cultural change.

Finally, the timing of lockdowns.

Whilst these oral hearings have focused heavily on events leading to the first lockdown, the response to subsequent waves of the infection were as deadly. Fundamentally, it was a misnomer to approach the second wave as a choice between prioritising health or the economy. No one, when it came to it, was in favour of letting it rip and seeing huge numbers of daily deaths and overwhelming of the NHS. Yet that was the trajectory as reliably predicted by the scientific advice.

On a realistic and balanced analysis, the question from late September 2020 was whether to take action earlier or later. It was also known that later would mean longer.

The lesson from the first lockdown had been go

earlier and go harder, but the policy as implemented was

to do the opposite. It cost lives and the consequences

of a very lengthy later lockdown.

My Lady, these matters must be the subject of

careful and detailed focus by the Inquiry in its report.

My Lady, those are the submissions on behalf of the

TUC and its sister organisations. They have been

grateful to have the opportunity to seek to assist you

in this important module of the Inquiry. Thank you.

Lady Hallett: Thank you very much indeed, Mr Jacobs.

Mr Allen.

Submissions on Behalf of the Local Government Association by Mr Allen KC


Lady Hallett: Is the microphone on?

Mr Allen: No – it will be. I think you probably heard me


Lady Hallett: I did.

Mr Allen: I shall start with a word, if I may, about future


The LGA wishes, if possible, to be

a core participant in those modules that look more

deeply into social care and test and trace, and there’s

much more detail to be explored in relation to those

topics than can be covered in this module, or indeed in these closing submissions. So these submissions will not cover those issues in the depth that they will deserve in a later examination.

The focus of the oral evidence for much of this module has been on the often chaotic and, it seems, consistently poor internal workings of national governance. But that is by no means the limit to the issue that this module has to consider about structure of governance.

There are four basic points that my clients wish to emphasise about the oral evidence you’ve heard. The LGA recognises that urgent and grave policy decisions as to how to bring the country through the pandemic had to be taken centrally and under great pressure. Yet it’s obvious now, and it must have been then, that no policy would be successful if it could not be delivered effectively. And at all times through the pandemic in England it was for local government to operationalise those policy decisions that did not directly involve hospitalisation.

So to make the best policies that would neither be a muddle nor ineffective, central government engagement with local government was an absolutely necessary prerequisite for good governance.

Three issues follow: did such engagement happen? If not, why not? And in preparing now for the possibility of another pandemic, what recommendation should you make to ensure a better connection between policymaking and operational delivery?

Did proper engagement happen? In short, no. The detail of the LGA’s perspective is set out in its former chief executive, Mark Lloyd’s witness statement. There are many examples of when it could have been done better that you’ve also heard from in this oral evidence, and we shall reprise some of those.

Consider first the evidence from three city mayors who should have been crucial partners of government, London’s Sadiq Khan, Greater Manchester’s Andy Burnham, and Liverpool’s Steve Rotherham. Each gave compelling evidence showing the disconnect between policy and operations.

Mr Khan made multiple requests to attend COBR meetings but was never invited by government on the grounds that other mayors and leaders would also have to be present.

Mr Burnham, who’d previously chaired swine flu COBR meetings, pointed out how attendance would have provided a structured environment where serious issues could have been properly raised, such as financial support for affected workers. He also said he asked the government for patient identifiable data of people who tested positive for Covid, but this was refused for weeks and weeks and weeks.

Mr Rotherham told you of his shock to discover in the early stages of the pandemic, only through the news, that those repatriated from Wuhan would be isolating in his area.

The central theme of their oral evidence, non-engagement, played out during the pandemic across the whole of local government. Thus, all three first learned about major Covid updates affecting their cities only after seeing them in the news.

Likewise, as a whole, councils learnt about new policies and guidance at the same time as members of the public, when the televised 5 pm daily briefings were broadcast.

Requiring policy implementation before the necessary structures and support mechanisms are in place was bound to be futile in securing a full effective implementation which could be explained and justified locally.

Next look at data management and its use. In our world, the best use of available data is key to good governance, yet data sharing was a key challenge in the early stages. The ability of local government to establish effective data sharing protocols varied significantly across England and indeed in the devolved nations. On this, the module heard from Gavin Freeguard, who spoke about local government feeling central government didn’t understand what data might be needed, how it might be used or its full benefits.

Even before the pandemic, he spoke of hearing many concerns that data sharing was very much a one-way relationship and councils are not supplied with information that could be valuable to them in running their local areas, and this problem played out during the pandemic.

Local government could complement the national system rather than duplicate or compete with it, but to do that it needed to be fully engaged. We have indeed given much written evidence about this in Mark Lloyd’s second witness statement.

Take also the evidence about tiering. Many today have made reference to that already, and you will recall how Boris Johnson, deciding against a circuit-breaker lockdown in September 2020, preferred a regional three-tier system to be operationalised in England from 14 October 2020. But this occurred without proper engagement with local government. And so you had the evidence from Michael Gove saying that the tiering system was inherently flawed, and that he grew more sceptical about its efficacy. Matt Hancock said about Tier 3:

“I was in despair that we had announced a policy that we knew would not work.”

And even in his evidence, Mr Johnson quickly acknowledged this policy “[ran] out of road” and that “we didn’t achieve it”.

Look also at the interface between police and local government on the issue of enforcement. Martin Hewitt, then chair of the National Police Chiefs’ Council, instances an occasion when Mr Hancock signed off the exact wording of new regulations at 11.46 pm when police officers were expected to enforce this 16 minutes later, at 12.01.

Local government was equally out of the loop, though expected to support the operationalisation of the regulations.

Look also at test and trace and isolate. The evidence on TTI provides a paradigm of the consequences of policy made without operational input. It is simply extraordinary. Mr Johnson should have said that he was initially told the UK was well covered and had ample preparations and a very good test and trace system by the contracted system. It was simply not true. The contracted system was not only way off the mark, but developed in complete ignorance of the capacity of local government.

As the LGA’s former chief executive, Mark Lloyd, has said in his witness statement, councils have deep knowledge of their local communities, their local health and social care system, and had the skills to support and make contact tracing work, yet they were not engaged from the outset, even though environmental health officers and public health specialists had been doing this for many years.

Only as the pandemic progressed was there increasing recognition of the vital value of local leadership when directors of public health, chief executives and civic leaders were brought in to provide that perspective. They were then able to inform the development of local outbreak plans that ensured the challenges of Covid-19 were understood and addressed.

Consider also the evidence of Age UK director Caroline Abrahams. She re-emphasised what she called the “strong words”, in her witness statement, that the government’s response to the first wave was deeply ineffective because of policymakers’ complete misunderstanding of what happens in care homes. She spoke of the long time for policymakers to respond to the reality of people living in care homes, often having very significant health issues, supported by too few staff. She also said of the hesitation on the part of government to intervene or to provide support to services which were predominantly provided by the private or voluntary sector, contrasting this with the steps the government took to protect the NHS.

Why was this? It would seem this is likely to be the consequence of a long-term neglect of the realities of this sector. This you will consider in a later module, we know. For now, the LGA asks you to recall how Professor Watson noted that the cuts to social care funding before the pandemic reduced the capacity of local authority services to provide social care and support, and how Professor Shakespeare noted that funding pressures on councils contributed to linked pressures on fee levels for care providers, leading to fewer staff and unmet need in the period before the pandemic.

There can be no doubt that the significant and sustained funding pressures facing adult social care and support stymied its ability to respond effectively when the pandemic arrived.

But we also remind you that Caroline Abrahams said that it was the arrival of Sir David Pearson to sort out the government’s response to social care as being the single biggest reason things got better. His involvement was so significant because Sir David, as a former director of adult social services, and indeed a former president of the Association of Directors of Adult Social Services, brought real local government experience on the operationalisation of these issues.

And so to my last question: why was there not the necessary engagement with local government?

There seems to have been a multitude of evasions about this, from blaming local government itself to blaming the dysfunctional way the centre of government worked during the pandemic. But it won’t do to blame local government. The LGA stood ready at every stage to input directly and to convene experts to support policy making.

Mr Lloyd’s first witness statement is 111 pages long, and many of them demonstrate exactly this point. And in any event, it’s up to central government to get the information necessary to make good policy. Its failure was to ignore councils’ special role in the community. Yet every central government should know that local councils, with local knowledge and local community relations, play an essential part in public life. In the US, they say that all politics is local, and it’s as true here as there. When it comes to dealing with authority, people tend to trust their local council rather than national remote sounding bodies, because they relate to their area and circumstances, what’s going on in their street or neighbourhood.

Putting it more positively, the LGA submits it was essential to understand what local councils could already do well and how they could be helped to do it even better in the face of the new social pressures and extra demands during the pandemic.

And so here are the LGA’s recommendations for future good governance.

First, it must be recognised that in a pandemic locally driven processes and responses will be more speedy and better designed to secure the necessary co-ordination and collaboration between agencies. By contrast, centrally prescribed top-down policy lacking such local involvement will always be sub-optimal.

So local organisations that should always be brought into the policy making as soon as possible to inform and, where possible, help to co-design national decisions.

First among these is the LGA being the only association which can speak for all authorities and which covers all bases. There are important other relevant, more specialist representative organisations such as the Association of Directors of Public Health and the associations of directors of adult and children’s social services, who should also be involved.

Local government must be represented at the highest level in COBR. Of course COBR meetings should not be too big, and so cannot have all councils as members, but the LGA, with its width of membership, and long experience in disseminating policy, can provide that representation, where necessary subgroups could include leaders or mayors of specific councils.

Improved engagement in this way would help optimise key decisions such as the proper balance between the needs of the NHS and of the social care sector, and the arrangements for the flow of the central data and intelligence from national agencies to local public health teams. It would also improve transparency, and the timely and effective communication of central government policies as they develop during a future pandemic.

My Lady, many more technical recommendations have been made in Mr Lloyd’s witness statement, which I shall not repeat but urge you to adopt.

So, my Lady, the LGA thanks you for the opportunity to participate in this module so as to bring the concerns of local government for the future good governance of any future pandemic to the fore.

Lady Hallett: Thank you very much, Mr Allen.

We will break now. I shall return at 3.15.

(2.58 pm)

(A short break)

(3.15 pm)

Lady Hallett: Mr Stanton.

Submissions on Behalf of the British Medical Association by Mr Stanton

Mr Stanton: Thank you, my Lady.

This statement on behalf of the British Medical Association focuses on the impacts of government decisions on doctors and healthcare workers. The BMA recognises that a pandemic will necessarily be challenging for healthcare and public health systems, and their staff. However, the scale and severity of the impact of Covid-19 was not inevitable, and was made worse by poor government decisions.

The UK Government was slow to act, too quick to ease protections, it failed to adopt a precautionary approach, failed to adequately consider the impact of decisions on those at greatest risk, and its response to the pandemic was significantly hampered and restricted by a lack of NHS and public health capacity.

Regarding NHS capacity, the Inquiry has heard a lot of evidence across Modules 1 and 2 about the importance of NHS capacity in responding to a pandemic. The response of Sajid Javid to your question, my Lady, about lessons learned typifies this shared view. He said:

“… in responding to a pandemic … your available health capacity has … a big determinant …

“We don’t have many beds per head in the UK, in England, for example … it’s around 100,000. If you look at countries like Germany, France, other comparable countries … they have more than double, triple, sometimes quadruple the number of beds that we have got. Similar for ventilator units, ICU units, doctors and nurses per head. NHS capacity is absolutely key to dealing with the next pandemic.”

Similarly, the Inquiry’s summary of references to the likely impact of the pandemic on the NHS within government meetings and communications between 14 February and 22 March demonstrates the significance of this issue. There were 47 references to NHS capacity in March alone, including the compelling evidence from 22 March that in the worst-case scenario ITU capacity in London would be overwhelmed in just nine days.

This rapidly deteriorating position and the limited available capacity forced the hand of decision-makers. The 16 March measures might have succeeded in bringing down the R number but the NHS was so close to being overwhelmed that there was no time to wait and assess their impact, and the UK went into a mandatory lockdown a week later.

Within this system, that was already stretched to breaking point, doctors and healthcare workers were vulnerable and exposed. They were described as the canary in the coalmine, because they are the first group to be infected, and their risk of infection was six times greater than in the general population. They are the essential component of the NHS, without which numbers of ICU and hospital beds are meaningless, and yet they were inadequately protected throughout.

The failure to provide adequate protection against the risks of aerosol transmission is an issue of serious and ongoing concern and one which the BMA has repeatedly raised before the Inquiry. Despite it being predictable in February that the virus would transmit by aerosol, the requirement of FFP3 respirators when treating patients with Covid-19 was downgraded in March to fluid-resistant surgical masks, which do not protect from airborne transmission and are not PPE. And this remains the position in England today.

The evidence of Professor Catherine Noakes supports the view that aerosol transmission was overlooked in favour of droplet transmission. Paragraph 10.11 of her witness statement suggests a number of reasons for the reluctance to fully acknowledge this risk, including the significant resource and operational implications for hospital infection and control measures.

It is perplexing that, just at the point when airborne transmission was becoming more widely acknowledged, a stop order was placed on further procurement of FFP3 respirators from 30 June 2020, when a July 2020 survey by the BMA found that shortages of respirators remained.

The failure to adequately respond to the risk of aerosol transmission has had a direct impact on the protection of healthcare workers, with 40% of respondents to a BMA survey reporting as late as July 2021 that they were not being provided with respirators, despite working with Covid-19 patients.

In this regard, the BMA invites the Inquiry to consider the extent to which considerations of cost and practicality were prioritised over safety.

There is also little evidence that the potential personal impacts on doctors and other healthcare workers were considered by decision-makers. All too often the risks to the NHS were characterised as organisational, for example, references to the NHS becoming “overwhelmed” or the need to “save the NHS”, without consideration of the personal circumstances and risks taken by the people who work in it.

This tendency can be seen in an email chain between Number 10 and the Cabinet Office over 13 and 14 April, referred to in the evidence of Simon Ridley and since published by the Inquiry. The emails raised concerns at reports that 20% of infections and 10% of deaths were due to infections acquired in hospitals and that while by this time the R number had been brought below 1 within the community, it was still above 1 in hospitals and care homes.

Notably, these concerns were not raised in the context of patient and staff safety, but with reference to workforce absences, stories about PPE in the media, and the need to avoid delaying the lifting of social measures. There was no expression of concern for the safety of the people working and being cared for in these environments, and the reported response of the Department of Health and Social Care was that this was not an issue of concern.

Meanwhile, and as described in evidence by Professor Banfield of the BMA, doctors were updating their wills, and making sure their life insurance was up to date.

The witness statement of Helen MacNamara demonstrates real insight into this issue at paragraph 89(sic) where she states:

“We kept being told that NHS capacity was elastic. My concern was that even if it was elastic that was not the same as being infinite … It was only much later that I realised that what was meant by NHS capacity being elastic was the capacity of people working in the NHS to work themselves into the ground to keep people alive. So yes they would cope, but the knock on impact of that would be the consequences for the people involved. We had thought we would see the consequences of a broken NHS in the winter of 2020/21. I fear that it took longer for the break to show and we are living with the consequences of stretching it too far in terms of what is happening now.”

These consequences include historically high levels of waiting lists, a crisis in staff retention and recruitment, significant numbers of doctors still suffering from Long Covid and moral distress and injury for doctors and other healthcare workers who felt unable to provide the right level of care, including for their non-Covid patients.

Finally, on impact, the Inquiry is aware of the disproportionate impact of the virus on people from ethnic minority backgrounds, and of the shocking statistics in this area, including analysis by the Health Service Journal which found that 94% of doctors who died with Covid up to April 2020 were from ethnic minority backgrounds, even though this group makes up only 44% of NHS medical staff.

The Inquiry has heard evidence about the review by Public Health England into disparities, and particularly the impact of the pandemic on ethnic minority groups published in June 2020. However, there has been little evidence of any tangible steps taken by government and ministers to address these disparities.

Another key area where a lack of capacity significantly hampered the UK’s ability to respond to the pandemic is the lack of public health capacity including crucially testing and contact tracing. The UK entered the pandemic with inadequate test and trace capability, exacerbated by many years of underfunding in local and national public health, which meant that Public Health England was unable to rapidly scale up its contact tracing capacity when Covid-19 emerged as a threat. This greatly limited the options available to decision-makers, including actions to contain and suppress the virus.

Public Health England did in fact call for greater capacity and resources from at least 12 February, but these calls do not appear to have been acted upon. Such was the lack of focus in this area that politicians, including Matt Hancock and Boris Johnson, told the Inquiry that they had wrongly assumed that the necessary testing and contact tracing capacity existed, only to find that it needed to be built mid-pandemic.

The reason given for the decision to abandon test and trace on 12 March was because the UK was moving from the contain to the delay phase of the pandemic response. However, the reality is that there was no meaningful testing capability, and what little testing capacity existed at this time was needed for healthcare settings.

The Inquiry has heard about the relative success of South Korea, which operated a more effective test and trace system, partly because of their previous experience of MERS. Just as South Korea learned from MERS, it will be important that the UK learns from the Covid-19 pandemic, and maintains sufficient test and trace capacity and capability, so that future decision-makers have this essential tool available to them. However, there are signs that vital pandemic infrastructure has already started to be dismantled, something raised as a significant concern by Sajid Javid in his evidence.

A final point about public health relates to the range and diversity of the scientific advice available to government. In his witness statement, Professor Banfield raised concern at a lack of independent public health expertise within SAGE, and Professor Peter Horby told the Inquiry that it would have been helpful to SAGE to have had greater expertise from frontline public health practitioners, because, while there were people in the room with public health expertise, “that’s different from being at the frontline running a public health department in a local council or on the ground”. He said that science needs to be placed in both the policy context and the operational context, and that this would have helped refine the advice given.

Regarding the timing of decisions in the early months of 2020, it is clear that much of February was lost to confusion and indecision. While a number of factors likely contributed to this, the BMA suggests that an area of focus for the Inquiry should be on the way that risk was communicated.

Boris Johnson was briefed on 4 February that a reasonable worst-case scenario would be up to 300,000 deaths, but it was not until a paper was produced on 28 February in which the reasonable worst-case scenario of 520,000 deaths was posited that he became alarmed. During this period, the probability of the worst-case scenario occurring increased from 10% in early February to the expression used on 28 February of “increasingly likely although not yet certain”.

A number of witnesses have referred to the difficulties in expressing and communicating probability. Professor Whitty said that when probability was expressed in remote terms, it can lead to an underestimation of the risk. Lord Stevens said that during February there was a lot of ambiguity about the probability of the reasonable worst case happening and there needed to be greater clarity.

For the ultimate decision-maker not to have fully understood the nature of such a serious threat suggests the need for better understanding and communication of risks within government.

That this was a collective and not just an individual failure is made clear by the widespread shock over the weekend of 13-15 March as the centre, Number 10 and the Cabinet Office, were confronted by the realisation that the reasonable worst-case scenario would materialise much sooner than had been thought, with the very real prospect of the NHS becoming overwhelmed.

This shock was described by Professor Halpern as a bolt from the blue, the penny had dropped. All of this calls for serious consideration of a more refined approach to risk assessment and to the communication of risk as suggested by Professor Horby.

Over the entire period of the pandemic there was a failure to take a sufficiently precautionary approach. This is evident on a range of issues, including asymptomatic and aerosol transmission, the delay in imposing protective measures, and in seeking to open up too soon and too quickly.

A more precautionary approach, for example through a focus on ventilation and mask wearing, could have been taken without significant economic impact, and at key moments of easing throughout the pandemic the BMA called for such an approach, which generally was not heeded.

There was little evidence that the UK Government learned from the mistakes of the first wave leading in to the inevitable second wave, despite the wide acknowledgement that it had the potential to be even worse than the first, and at a time when vaccines remained unavailable. Instead, the country opened up too quickly, typified by the reckless Eat Out to Help Out initiative, which was decided without scientific input, despite the obvious risk of adversely impacting Covid transmission rates, and in which respect a study from 2020 suggests it was responsible for between 8% to 17% of new infections.

Once cases began to rise again, the delays and indecision through the summer and autumn of 2020 necessitated a further national lockdown. This was rightly referred to by Professor Angela McLean as a “terrible moment”, and powerfully described in her evidence in these terms:

“… we delay and delay a decision, and then we have to slam the brakes on as hard as possible with the attendant social costs and economic costs.”

Sadly, this lack of a precautionary approach and failure to learn from mistakes continued throughout the pandemic, including through the summer of 2021, when the government encouraged the freedom narrative which contributed to the widespread view that the virus had been fully contained, only for protective measures to be required once again in December 2021 in response to the Omicron variant.

My Lady, as a concluding point, it is accepted that there was a need to take account of the economic impact of the pandemic. However, there was a tendency towards a false dichotomy that the choice was between public health and the economy, when in reality these were inextricably linked. It was possible to have better protected both public health and the economy, and the economy would have been supported, not undermined, by more precautionary public health measures.

Given the inevitability of further pandemics, there is an urgent need to find this balance. It will involve increasing NHS and public health capacity, coherent risk based planning and strategies, and a precautionary approach that protects those most at risk.

Thank you, my Lady.

Lady Hallett: Thank you very much, Mr Stanton.

Mr Cohen. Ah, there you are.

Submissions on Behalf of the UK Statistics Authority by Mr Cohen

Mr Cohen: My Lady, I appear for the UK Statistics Authority.

The Authority has been very grateful for the opportunity that you and your team have afforded them to participate in these hearings and to hear what is being said. Every minute of the hearings has been carefully considered, and the Authority remains determined to learn any possible lessons from that which has occurred.

My Lady, a number of themes have been drawn out by the Authority from the evidence that has emerged, and I’m going to comment briefly on them on behalf of the Authority.

The first is that in recent weeks, and indeed this morning, you’ve heard evidence and submissions by reference to a table which was originally presented in evidence by Professor Sir Ian Diamond, the National Statistician.

The reference for that is INQ000292765, page 10.

My Lady, plainly it is not the role of the Authority to seek to referee any dispute between different core participants as to what the statistical evidence that they have presented means. If anything, my Lady, that’s a matter for you. However, I am instructed to offer some observations by way of context in relation to that information.

The first point to make is that those statistics – which were, as I say, presented in evidence by the National Statistician – represent the best available information, and the Authority stands by them.

The second point to make is that, to an extent, some of the data in that table has been corrected, because it is based on a standard European population and control mechanisms have been used. Most particularly that means that the age distribution of individuals in a given population has been corrected and, as such, what that data cannot be said to have been skewed by is differences in age distribution in different countries.

The final point to make about that table, my Lady, is that mortality is dependent on a very large number of variables, and indeed, like any statistic, interpreting requires some caution. It may be that, on one view, those statistics tell the Inquiry something about the measures that were put in place in one country versus another, but it is equally possible that other variables in those different countries have had an effect on the results. So some caution is required before interpreting that table as if it were a ranking of different countries.

My Lady, the second point that the Authority wishes to make is about data sharing and data access. A common theme in the evidence that you have heard has been the concern, particularly early in the pandemic, as to data sharing and getting hold of the information that was required.

You may recall, my Lady, that Professor Sir Ian Diamond enlarged on this in evidence, observing “sharing data, or being able to link data together, has the potential to provide evidence to improve the lives of all our fellow citizens in a way that almost nothing else does, and that requires easy, ethical, privacy enhanced data sharing”.

My Lady, that is a clarion call on behalf of the data professionals involved in this process, and the ultimate need is to ensure that there are clear and consistent ways in which data can be shared. This might involve systems such as the integrated data service that’s currently being developed by the ONS, which involved using trusted research environments to ensure that data can be shared in a way which also commands public confidence, because the Authority is very well aware of the concerns that the public legitimately have at ensuring that their privacy is respected.

My Lady, the third topic that I want to visit briefly on behalf of the Authority is the difficult issue of including information as to ethnicity on death certificates.

My Lady, as Sir Ian Diamond explained, he entirely agrees with the sentiment that it is vital that there is accurate information about the ethnicity of those who have died. You heard evidence, particularly from Ms Badenoch, in which she suggested that she wasn’t clear why that wasn’t recorded, and it might simply be that it was not something anyone had ever really thought about. My Lady, there’s no criticism of the witness for that observation, but in fact it is an issue which has been given the most anxious consideration.

The system is under change: in 2024 and from then on there will be a way of taking the self-identified ethnicity from a person’s medical records and including that in mortality data, and the work that you heard evidence about from Professor Nazroo also continues to try and find the best and innovative ways of tracing out ethnicity and mortality and linking them together. But there is a real concern about taking a situation in which a person has died and is unable to say “Actually, no, that is not my ethnicity”, and effectively deeming it after they’ve died to be the case. It’s an issue which causes grave concern.

So this is a matter on which work is ongoing. It doesn’t necessarily admit to an easy answer, my Lady, and the Authority is anxious that well-meaning recommendations that ethnicity ought to go on death certificates don’t open a course which would be unwise.

My Lady, the final theme to visit is really probably the most important single point that the Authority wish to raise, and represents something of a – well, it’s a point that they certainly emphasise greatly.

You heard evidence from a number of witnesses, including Mr Cummings and others, that there was a lack of scientific literacy in Number 10 and in other parts of government, and there were references to the need to bring in external professionals who could provide their expertise on these matters.

The Authority would simply say that it’s important not to overlook, whenever a crisis emerges, that the UK Government is already fortunate enough to have very expert individuals in bodies such as the UKSA but also in GO-Science, and, rather than rushing to bring in external individuals, one of the paramount lessons of this experience is the need to ensure that the government’s own scientific expertise is used as rapidly as possible and that, for instance, figures such as the National Statistician are involved from the very first to ensure that they are able to give their perspective and to feed into the process.

My Lady, you will receive some additional written submissions from the Authority, but that is all I say on their behalf today, save for acknowledging that they have listened with sorrow and great sympathy to the evidence that you’ve heard from those who have been directly affected by the Covid pandemic, and they reiterate their sympathy and condolences to each of those individuals.

My Lady.

Lady Hallett: Mr Cohen, can I press you on one point that you raised, just in relation to the table –

Mr Cohen: Yes, my Lady.

Lady Hallett: – and the number of caveats that you said in relation – don’t use it as rankings, although you also said the Authority stands by the figures.

What would be the best description, a very rough guide? I mean, is there any – are you in a position to be able to give me any description?

Mr Cohen: My Lady, it may be best for us to do this in writing –

Lady Hallett: Thank you.

Mr Cohen: – because the statistical experts on whose behalf I speak are doubtless all too aware that I am not a statistical expert, and they would want to make sure that what’s said is accurate.

Lady Hallett: If they could provide, in as laywoman’s terms, as best they can, how reliable it would be as any kind of guide, that would be a great help, and explaining what you’ve explained about the caveats. Because, as you know, some core participants have placed some considerable emphasis on it.

Mr Cohen: My Lady, yes.

Lady Hallett: Thank you very much indeed, Mr Cohen. I’m sorry to press you.

Mr Phillips? There you are.

Submissions on Behalf of the National Police Chiefs’ Council by Mr Phillips KC

Mr Phillips: My Lady, as you know, the National Police

Chiefs’ Council is a national co-ordinating body that

represents all UK police forces, and of course in this

Inquiry it is a core participant representing UK

policing. The police were, on any view, one of the key

frontline organisations during the pandemic.

In his oral evidence to you, former assistant

commissioner Martin Hewitt, who chaired the organisation

throughout, noted two particular impacts of the pandemic

on policing.

First, the NPCC recognised very early on that the

pandemic required a dedicated police response. The

national co-ordination of that response, established in

March 2020, was Operation Talla. As you know,

Operation Talla covered just about every area of

policing activity, and deployed the available resources

of the NPCC.

Secondly, it was clear to the NPCC that normal

policing activity, including the prevention and

detection of crime, would have to carry on despite the

challenging conditions and would, of course, continue

after the end of the pandemic, whenever that was.

As I said in my brief opening submissions, the pandemic of course posed a wide range of challenges in every aspect of public and private life. Policing and police officers faced many such challenges, as the pandemic affected every part of the service.

On the one hand, there was the impact of the virus itself. Officers had to discharge their duties without knowing how long the pandemic would last, what the impact of infections and isolations would be on police resources, how the safety and welfare of individual officers and members of staff, as well as the people they came into contact with, could be effectively ensured; and you may remember Martin Hewitt succinctly put it that you can’t police at 2 metres’ distance.

On the other hand, the police were expected, under the Coronavirus Act and the Covid regulations, to interfere with people’s lives and with their freedom of movement in a way that neither the police nor the public had ever experienced before.

In his evidence to you, Mr Hewitt described seeing, at the start of the pandemic, the policing measures implemented in other countries where the virus had spread ahead of the UK, and thinking that such measures had not been seen since the Second World War.

Operation Talla was therefore an unprecedented national response to this unprecedented situation.

However, my Lady, it bears repeating that at all stages of the pandemic the work of the NPCC and of Operation Talla encompassed far more than the enforcement of the Covid-19 restrictions, in terms of the co-ordination of that national policing effort.

Moreover, the NPCC itself played no direct role in the enforcement of the regulations, the policing issue on which the Inquiry has chosen to focus during this module.

As you know, and so far as enforcement by the police was concerned, this remained at all times the responsibility of individual officers and forces.

However, a vital aspect of the NPCC’s work was the production, the dissemination of clear and accurate briefings and formal guidance for forces in conjunction, of course, with the College of Policing.

The key guidance, as you will recall, was issued by the NPCC and the college in March 2020, and it was the four Es approach: engage, explain, encourage, enforce. That approach, I would suggest, was inherently flexible and the message was simple: enforcement was the last resort after the first three Es had been undertaken.

As Martin Hewitt explained to you, compliance, not enforcement, was the object of the exercise and, I would suggest, the proper metric of success.

Any attempt to assess the police response to the pandemic solely by reference to the number of FPNs issued involves focusing disproportionately on the final stage of the four Es process. The overwhelming majority of police contact with the public and the police’s achievement in securing compliance with the regulations came as a result of the first three Es.

The four Es guidance of course reflected another fundamental point highlighted both by Mr Hewitt and by Dame Priti Patel in their evidence to you, which is that in this country we have policing by consent. The task faced by the police in the pandemic was to encourage the public to comply with regulations which were judged by government to be both in everyone’s best interests, whilst at the same time retaining their trust, and I said to you in my opening that that was a formidable assignment.

Dame Priti Patel in her evidence said that the police had been asked to almost do the impossible. Their task was as always to enforce the law, and I stress again that it was no part of their remit to enforce government policy, still less to enforce government guidance.

However, as you’ve now heard from a number of witnesses, that task was made the more difficult by the frequent changes to the regulations, by the speed of those changes, by the lack of consultation and little or no notice given to the police before changes were enacted, and of course by the frequent discrepancies between the terms of the legislation on the one hand and government guidance or ministerial statements concerning it on the other.

You heard, I would suggest, compelling evidence from Martin Hewitt about the difficulties which this caused the service in the largely unchartered territory of public health policing, despite what he also emphasised to you was a very strong working relationship with the Home Office. So it was significant that the then Home Secretary herself accepted in her evidence to you that the process of enacting regulatory changes was “suboptimal at every single level”.

It’s no exaggeration to say, my Lady, that UK policing and its leaders had to draw very heavily on their reserves of flexibility and resilience as they adapted to the novel responsibilities conferred on the service and sought to keep the public safe.

My Lady, the issue of the enforcement of Covid regulations has played a very minor part in these hearings, which have of course been largely devoted to high level government decision-making. Indeed, it’s been a striking feature of the many, many hours of submissions you’ve heard so far today that none has made any reference to, still less any criticism of, the enforcement by the police of the regulations: a fair indication, I would suggest, of the very modest role the question has played in these hearings. It features, you’ll remember, as a single sub-issue in your lengthy list of issues, and only one day of evidence was directed to it. On that day, you heard, as I’ve said, from Mr Hewitt on behalf of the NPCC, and my submission to you is that his evidence was considered, balanced, reliable and authoritative.

My Lady, we’ll put in detailed written submissions, of course, drawing on that evidence and on the other material the Inquiry’s gathered in in relation to policing, but of course if we can assist you in any other way, we’re ready to do so.

Lady Hallett: Thank you very much indeed, Mr Phillips.

I understand that those who are still to speak were given a listing of tomorrow and would prefer to stick to tomorrow. So unless there’s anybody who is particularly anxious to speak tonight, we shall pause now and return for 10 o’clock tomorrow; and I’m extremely grateful to everyone who has spoken today for admirably, almost to a man and woman, sticking to their time limits.

Thank you very much. 10 o’clock tomorrow.

(3.55 pm)

(The hearing adjourned until 10 am on Thursday, 14 December 2023)