Transcript of Second Module 2B Preliminary Hearing, dated 29 March 2023

(10.00 am)

Baroness Hallett: Bore da. Good morning, this is the second preliminary hearing for Module 2B. The aim of preliminary hearings is for me to check in public on the progress a module is making and to ensure that that progress is good. It is also a chance for Core Participants to air, in public, any concerns that they may have.

Core Participants play a vital role in the public Inquiry and I have been very impressed to date by the quality of the submissions made to me by many of the Core Participants and the commitment that they have shown.

With their help, I hope we can conduct a thorough investigation and meet the ambitious timetable that I have set. In that way, I can reach conclusions about the preparedness for the pandemic and the response to it and make any recommendations as we go along.

I am determined that the public of the United Kingdom should not have to wait until the end of the Inquiry for all the answers to their legitimate questions and concerns and that any recommendations that may reduce suffering in a future pandemic are published as soon as practically possible.

I have received written submissions from several of the Core Participants to this module for today’s hearing. I’m very grateful to them and I have read them very carefully. I will bear all the submissions very much in mind. It means that those who are making oral submissions need focus only on the matters they wish to highlight this morning.

Mr Tom Poole KC, lead counsel to the Inquiry for this module will now explain in detail the issues for me to consider today.

Mr Poole?

Submissions by Mr Poole

Mr Poole: Bore da. Good morning my Lady. Can you hear and see me?

Baroness Hallett: I can, thank you.

Mr Poole: This is the second preliminary hearing in Module 2B, the first one having been held on 1 November some four months ago. By way of reminder for those who are watching and listening, Module 2B is looking at core political and administrative decision making relating to the management of the pandemic in Wales. Primarily, the key strategic decisions taken by the Welsh Government.

I don’t propose to reintroduce the Core Participants or their legal representatives, there are nine Core Participants in Module 2B and all are legally represented.

Written submissions for this morning’s hearing have been received from five Core Participants, namely, Covid-19 Bereaved Families for Justice Cymru; John’s Campaign and Relatives & Residents Association; the Trades Union Congress and the Wales Trades Union congress; Disability Wales and Disability Rights UK; and the Welsh Government.

We are extremely grateful to them all for having provided us with their observations and insights and also for the brevity with which they have done so.

After my submissions, your Ladyship will be hearing submissions from the following Core Participants in the following order: Covid-19 Bereaved Families for Justice Cymru, represented by Bethan Harris; John’s Campaign and Relatives & Residents Association, represented by Adam Straw KC; the Trades Union Congress and Wales Trades Union Congress represented by Samuel Jacobs; Disability Wales and Disability Rights UK represented by Danny Friedman KC; and the Welsh Government represented by Ruth Henke KC.

Before turning to my substantive submissions, may start by briefly explaining the arrangements for this morning’s hearing. These proceedings are being recorded and live streamed to other locations. A transcript of what is being said at the hearing will be made publicly available on the Inquiry’s website in due course.

As is always the case in hearings like this, matters may be mentioned of a potentially sensitive nature. To cater for this, the broadcasting of the hearing via the YouTube feed will be conducted with a three-minute delay. That feed can therefore be paused if anything unexpected is aired which should not be. We do not expect such matters to arise over the course of this morning but I mention this feature so that those who are following proceedings understand the reasons for any short delay, if, for any reason, that did need to happen.

I propose to first say something about the Inquiry’s evidence gathering. Since the last preliminary hearing, a great deal of work has been done and at very considerable pace indeed. As of yesterday, the Module 2B team had issued 84 formal requests for evidence pursuant to Rule 9 of the Inquiry Rules to entities, persons and organisations in Module 2B alone.

A further 73 requests have been made jointly with other Inquiry modules and 39 Rule 9 questionnaires have been issued to members of the Welsh Technical Advisory Group and its related subgroups.

As explained at the last preliminary hearing, the Rule 9 requests are formal requests for documents and, in many cases, witness statements. Most are long and complex, particularly in the case of the key decision makers. To give a sense of the breadth and width of the Inquiry’s reach, the Rule 9 requests include the following organisations: the Welsh Government; the Chief Medical Officer for Wales; the Office of the Secretary of State for Wales; the Technical Advisory Group and Cell; the Welsh Local Government Association; the Wales Trades Union Congress; Public Health Wales; the Children’s Commissioner for Wales; the Health Treasury; the Health and Social Services Group; the National Police Chiefs’ Council; the Office of the Domestic Abuse Commissioner for England and Wales; the Office of the Victims Commissioner for England and Wales; the Intensive Care and National Audit and Research Centre; the Ministry of Justice; the Crown Prosecution Service; HM Courts and Tribunal Services; UK Statistics Authority and Office for National Statistics; Equality and Human Rights Commission in Wales; the Office of the Older People’s Commissioner, Wales; the British Medical Association; Liberty; Justice, the Education and Public Services Group; the Welsh Government Transport Group; the Chief Executive of NHS Wales; Care Inspectorate Wales; and 12 Welsh Government directorates.

Rule 9 requests have also been issued to a number of individuals, such as senior civil servants within the Welsh Government, special advisers to the Welsh Government, individuals from Public Health Wales and members of the First Minister’s Black, Asian and Minority and Ethnic Advisory Group. Further requests of witness statements from Welsh Government ministers, including the First Minister, are due to be issued within the next few months.

Those witnesses involved in core decision making within the Welsh Government are asked to disclose to the Inquiry key emails and correspondence relevant to the issues addressed in their witness statements, as well as any informal or private communications about the Welsh Government’s strategic response to the pandemic.

It shall also be noted that Module 2B, in conjunction with Modules 2, 2A and 2C, has issued over 73 Rule 9 requests to organisations and bodies representing at-risk and vulnerable groups within Wales, as well as organisations representing those with protected characteristics. To date, entities and organisations representing the following groups have been written to: women; black and minorities; children and young people; those affected by health inequalities; those suffering from mental health issues; older people; disabled people; workers’ groups; health professionals; the bereaved; LGBTQI; the traveller, gypsy and Roma community.

In answer to a concern that has been expressed in submissions made on behalf of the TUC, the 2B Module Team is confident that the evidence elicited from the Rule 9 requests that have been issued will reflect the particular experience of at risk and vulnerable people in Wales.

In our CTI note issued to Core Participants in advance of this preliminary hearing, we asked Core Participants to propose the identities of individuals and organisations to which further Rule 9 requests might be issued. Some Core Participants have very helpfully done so, including Covid-19 Bereaved Families for Justice Cymru, John’s Campaign and Relatives & Residents Association and the TUC. All of these suggestions are receiving active further consideration. At this stage, I make three comments on the suggestions which have been made.

First, some Core Participants have provided details of experts in various fields. The suggestions that have been made are all very helpful and will be considered. The details of the suggested experts’ roles, relevant publications and explanations as to what the Core Participants think they might add to Module 2B are all particularly helpful.

Second, suggestions have been provided as to Welsh ministers, civil servants and special advisers who might be contacted for individual Rule 9 responses. An analysis has already been done by the module team of key decision makers within and advisers to the Welsh Government, which have been cross-referenced with these proposals.

Third, as regards organisations which may be able to provide information about the impact of key political decisions on vulnerable, at-risk and minority groups, various helpful suggestions have been made.

For some, whose area of interest is already being covered by other similar organisations, it may be that the possibility of contacting them will be reviewed once those other organisations have responded and an analysis can be undertaken of whether any additional material is required. This appears to us to be the best way to balance thoroughness and the need to avoid unnecessary expense, as your Ladyship requires us to do.

The point appears to be well made, in our view, by the TUC and Wales TUC, where they say that some of the national organisations who have been contacted may or may not be able to provide adequate information about Wales or information specific enough about certain at-risk groups for our purposes. We accept that these possibilities may prove to be right and we maintain an open mind to contacting other groups if the responses which we receive prove inadequate for our purposes on these or other grounds.

I would like to be clear, however, that work has already started on finding out more about the suggested organisations, to the extent they were not familiar to us already.

Before leaving the topic of Rule 9 requests, I would like to repeat the assurances that were given by counsel to the Inquiry at the second preliminary hearing for Module 2, that the Inquiry is committed to fearlessly inquire into the impact on the pandemic on at-risk, vulnerable, marginalised and ethnic minority people and groups. Specifically in Module 2B, we will be considering whether the effects of the pandemic and the measures taken in respect of these groups were considered when making core political decisions.

It is for this reason that a number of Rule 9 requests have been made specifically to elicit relevant evidence bearing on this issue.

In this regard and generally I hope that the number of Rule 9 requests and the wide range of organisations, entities and individuals who have received such requests to date provides reassurance that the Inquiry is casting its investigative net sufficiently widely.

We will continue to provide Core Participants with monthly updates about our evidence-gathering process, including summaries of the Rule 9 requests which have been sent. These updates will also identify future Rule 9 requests that are in the pipeline.

I next propose to address disclosure. As explained in the CTI note, each and every document is individually reviewed, sifted for relevancy, redacted where necessary and then sent back to the document provider for comment.

It is fair to say that this process has proved burdensome and problematic. However, in light of the fact that the start of Module 2, and hence modules 2A, B and C, have been moved back in light of the delayed start of Module 1, the problem is now less acute.

As set out in the CTI note, the Inquiry team has undertaken to redact from disclosed materials the names of junior officials where it can be demonstrated that the disclosure of that individual’s name is not considered necessary and, by virtue of their junior position, they have a reasonable expectation of privacy.

I should, of course, make clear that each redaction which the Inquiry, as opposed to the document maker, is required to undertake is provisional and subject to change, as a result of the Inquiry’s own scrutiny of the evidence and any matters raised by the Core Participants following disclosure to them of the redacted document.

The problem encountered by the Inquiry is that, given the profusion of policy documents and Government emails, there are literally thousands of manual redactions required. In addition, in many cases, it was not possible for reviewers to be sure that the particular name was irrelevant. As such, the process of review and disclosure slowed down considerably.

As you would expect, the Inquiry team has taken a number of steps which has already sped up the process, whilst ensuring that only irrelevant information is redacted. I mention three such steps:

First, increasing the number of reviewers available each day to review documents. Rest assured that very considerable resources are being directed at this process. We hope that, by the time the process is running smoothly, the number of documents reviewed weekly, of which the Core Participants will receive a portion, namely the relevant material, will run into the thousands.

Second, block redacting the headers to emails in the first instance, leaving only the first email in the chain with redactions to specific names where that is required.

Third, working towards a more nuanced automatic redaction by the document handling system of email addresses.

Nevertheless, I accept that, on account of some delays in getting back documents from document providers, as well as the review process, documents have not gone out quite as speedily as we would have wished. We remain determined to disclose documents as soon as we can. To do so, however, we will need the ongoing support from Rule 9 recipients in meeting deadlines and resolving issues promptly when they arise.

As acknowledged by the Welsh Government in their written submissions, there have been some delays in the disclosure of ministerial advices to the Inquiry team. These are now being provided in tranches and reviewed as a matter of priority and the Welsh Government has agreed to provide all outstanding ministerial advices by the end of May. We welcome the Welsh Government’s statement in their written submissions that they intend to engage fully and work collaboratively with the Inquiry to ensure disclosure and statements are provided in a timely and efficient manner.

As of yesterday, Module 2B will have disclosed 473 documents from the Welsh Government, Public Health Wales and the Office of the Secretary of State for Wales. We anticipate disclosing approximately 500 further documents during the coming weeks.

Turning next to the issue of parliamentary privilege, which is not an issue that need detain your Ladyship. The issue was raised in CTI notes in modules 1 and 2 and addressed in our CTI note for this module out of an abundance of caution so Core Participants can understand the general approach that the Inquiry is likely to take. However, as your Ladyship ruled in your 17 February ruling in Module 1, there are no issues of principle that require determination, given the practical approach adopted by the Inquiry.

Before leaving the subject, I would like to thank John’s Campaign and Relatives & Residents Association, as well as Disability Wales and Disability Rights UK for their helpful submissions on the exceptions to the rule against the use of parliamentary materials in legal proceedings. I’m also glad to see that they agree with us that there are no issues at this stage that require determination.

I turn next to experts. Draft expert reports, which cover material relevant to Module 2B, have been received from Professor Ailsa Henderson and Professor Thomas Hale. Professor Henderson’s report deals with political structures for devolution within the UK and mechanisms for inter-governmental decision making between the UK Government and the Devolved Administrations during the pandemic. Professor Hale’s report deals with international data relating to the pandemic. Both draft reports are receiving consideration from the Inquiry legal teams.

A further draft report with relevance to Module 2B, instructed by Module 2, has been received concerning decision making structures at the UK Government in an emergency. The instruction of a similar report relating specifically to the Welsh Government is being considered.

A report has also been instructed but not yet received on the access to and the use of data by the UK Government and the Devolved Administrations during the pandemic. This report from Gavin Freeguard the former programme director and head of data and transparency at the institute for Government is due to be received in draft form shortly. On receipt, we will analyse its content to the extent to which it covers Welsh issues and, if necessary, look to instruct a Wales-specific report on this important subject.

Following disclosure of the draft report relevant to Module 2B, Core Participants will be invited to raise points of clarification or new matters that are agreed by the Inquiry to be relevant with each expert. Given the number of Core Participants across modules 2, 2A, 2B and 2C, it may be necessary for there to be some limitations imposed as to the scope or the number of matters able to be raised by each Core Participant. The Inquiry team will provide further information about the intended process for this involvement by Core Participants in due course.

In the Module 2B preliminary hearing, your Ladyship heard submissions about the need for an expert to deal with the issue of structural racism and discrimination. In your 9 March ruling, your Ladyship indicated that it would be appropriate for an expert or experts to provide an opinion on the issue of pre-pandemic structural racism, with the caveat that it is not within the remit of the Inquiry to conduct an Inquiry into institutional racism.

Your Ladyship also directed that the Inquiry team should look at the same issues relating to other forms of pre-existing discrimination. Our proposal to you, my Lady, is that you adopt the same approach to the issue of pre-existing structural racism and other forms of discrimination in Wales. We wish to emphasise, as I indicated earlier, that this is an issue to which we are very alive in this module.

Turning then to planning and timetabling for the remainder of the module. At the last preliminary hearing, Core Participants were understandably keen that we should set out our plan as to when the public hearings in Module 2B would take place. As already mentioned, necessary changes to the timetabling of Module 1 has resulted in the Inquiry’s overall timetable being altered from our initial projections and you have had already made rulings regarding the timetables of modules 1 and 2, which can be have viewed on the Inquiry website.

The need for clear planning is appreciated. Therefore, subject to submissions which you may hear from Core Participant representatives, we propose that the Module 2B substantive public hearings should commence on Monday, 26 February next year.

It remains our plan that those Module 2B hearings will last for three weeks. More precise plans as to which witnesses will give evidence on which days will be announced in due course when further consideration and analysis of the evidence being gathered permits.

We note what is submitted on behalf of the Core Participants, in relation to whether three weeks is long enough. Given that the bulk of the documents have not yet been received and given your Ladyship’s stated desire to have hearings that are relevant and not undermined by the passage of time, we are loath to suggest an extension in length, given the impact that would have on the rest of the Inquiry. I am sure your Ladyship will reflect on what has been said and keep this issue under review.

We also note what is said on behalf of John’s Campaign and Relatives & Residents Association regarding the adverse affects of delay. As your Ladyship has made clear, you are determined that the Inquiry will not drag on. The Inquiry is making fast progress with six investigations already open and substantive public hearings taking witness evidence starting in June. The Inquiry is acutely aware of the need to make timely recommendations, which is why your Ladyship has promised to publish regular reports.

To this end, it is important that progress continues at pace with the Module 2 teams, assisted of course by the Core Participants, doing everything they can to ensure that the relevant dates for the Module 2 public hearings are met.

As we intimated at the last preliminary hearing, to facilitate access for and engagement by the public in Wales, the substantive public hearings in Module 2B will take place in Wales. Moreover, the Inquiry will be supporting the inclusion of the Welsh language in hearings as much as possible by, for example, simultaneous translation facilities.

As regards hearing venues in Wales, the Inquiry is currently looking into this but I can assure you, my Lady, and, in particular, those who represent vulnerable or infirm groups that those discussions will give careful consideration for the need for minimum inconvenience for and any particular needs of those who may wish to attend those hearings. Taking on board submissions made by Core Participants, in particular Disability Wales and Disability Rights UK, the Inquiry is in the process of developing an overall approach to reasonable adjustments in a systematic manner.

For those who cannot or do not wish to attend in person, the intention is that those hearings, like these, will be live streamed online and the transcripts made publicly available via the Inquiry’s website. The Inquiry will also be able to upload recordings of hearings to the Inquiry’s website and YouTube channel. Before that time, the work of the Inquiry in preparation for those hearings will continue. There are a number of planned events in order to maximise the involvement of Core Participants and ultimately to assist in the fulfilment of the terms of reference.

Before outlining our current thinking in that regard, it is worth pointing out that we consider it inevitable that there may be slight variations in the way in which we propose each Module 2 and its submodules be conducted, both with regard to the issues within each investigation, which may differ in each of the four nations of the UK, and the way in which the procedure might best serve each of those issues being addressed.

There may be a number of legitimate reasons for this such as the timing of the hearings, practicality, the different issues which fall to be addressed in each part of the UK, both generally and at the hearings, the number and variety of material providers and decision makers, the volume of material and the number and interests of the Core Participants, which are different in each of the four submodules.

Though such differences may occur, consistency in the treatment of each of the four nations of the UK is, in our submission, achieved by the broad consistency of the outline scopes in each and the commitment in each to important underlying principles, such as the need to permit participation in the process by those who have been accorded core participation status, which is reflected by each module providing means by which Core Participants may participate beyond what is laid out in the Inquiry Rules.

It is intended in the first instance that we will distribute a list of issues which we intend to address in Module 2B. In the first instance, we propose that this will be issued to the Core Participants who will then be invited to provide comments and suggested alterations and additions to the list of issues. The list will be a refined version of what issues we think arise for determination by the Inquiry in Wales, under each of the provisional outline of scope for Module 2B paragraphs. The list of issues will draw on the extremely helpful suggestions that have been made by many of the Core Participants.

In addition to suggestions in correspondence, John’s Campaign and Relatives & Residents Association, as well as Disability Wales and Disability Rights UK, have made helpful suggestions in written submissions ahead of this hearing. These, as well as other suggestions made by the Core Participants, are being actively considered. I do not propose now to deal with those detailed issues raised but welcome the further engagement of Core Participants on this topic.

In your ruling of 9 March, issued after the second preliminary hearing in Module 2, you directed that Module 2 should produce a list of issues by 28 April. We propose that you should direct this to happen in Module 2B by 12 May.

I turn next to the Rule 10 process. As far as questions for witnesses are concerned, Core Participant representatives are aware of the provisions of Rule 10 and the procedures laid out there for the questioning of witnesses, which will be primarily conducted by counsel to the Inquiry and the opportunity which is set out there for applications to be made for questions to be asked by Core Participant representatives, in particular under Rule 10.4.

In addition to the procedures laid out in the rules, and to the proposed list of witnesses for Module 2B public hearings, which we will share with Core Participants in due course, it is intended that Core Participants will be provided with an opportunity to suggest areas and lines of questioning, which will be covered with each witness.

In your ruling issued after the Module 2 preliminary hearing, your Ladyship described an informal route by which Core Participants could seek to persuade the Inquiry team that there are issues that are of such centrality that they must be raised in the course of the witnesses’ evidence. In Module 2B, we also intend to adopt a similarly informal approach, details of which will be provided to Core Participants when we get nearer the time of those substantive public hearings.

When providing those details, we will also seek to address the questions raised by Core Participants in their written submissions, such as those raised on behalf of John’s Campaign and Relatives & Residents Association regarding the distribution of evidence proposals; Disability Wales and Disability Rights UK regarding, amongst other things, the timescales for receiving and commenting on evidence proposals; and the TUC and Wales TUC on the questioning by Core Participants of witnesses.

As well as the various procedures we currently have in mind, all of which are designed to maximise progress and also Core Participant involvement in the Inquiry’s work, we propose a third preliminary hearing for Module 2B should be held in November this year. At that hearing, a full update can be given on progress and plans for the public hearings, which would then follow in about two to three months’ time later. We note the suggestion made by the Welsh Government that the third preliminary hearing should take place after the conclusion of the substantive hearings for Module 2A. In our opinion, this will be too late to allow for meaningful engagement by Core Participants and input in respect of a substantive public hearing starting in late February next year.

Turning next to Every Story Matters, which is the name that will be given the Inquiry’s listening exercise through which individuals will be able to communicate to us their experiences of the pandemic. It is part of the work of the Inquiry that it will gather and assimilate the accounts of people across the UK about the impact of the pandemic on their lives. Such is the breadth of human experience of the pandemic that this is really the only way in which the Inquiry can ensure that record is made of the accounts of those who wish to participate.

In response to submissions made in Module 1, further information was made available in the Inquiry’s marked newsletter about the details planned for the exercise. This newsletter can be accessed on the Inquiry’s website.

By way of overview the Inquiry has committed to providing different ways for people to share their story including a web form, with a save and come back feature, a phone line, a paper form and in-person community listening events, designed to reach seldom heard or underrepresented groups attended by, where possible, your Ladyship and other Inquiry staff members. These listening events shall be launched later this year and I should add there will be an ability to participate in different languages, including Welsh.

The Inquiry has committed to adopting a trauma-informed approach to the listening exercise and will provide emotional support. Experiences will be gathered and analysed by experts in research and analysis, not by media communications firms. Reports will be produced for each relevant module investigation and will be submitted as evidence to be disclosed to Core Participants and published as part of the hearings for each module of the Inquiry.

The way we plan to gather people’s stories will help the Inquiry obtain as broad an evidence base about the impact of the pandemic as possible, to assist it in reaching robust findings and recommendations which take account of both cause and effect. The Inquiry team is grateful to all those who have recently participated in the webinar on Every Story Matters on 15 March and for all of the feedback which has been received in response to that exercise. The Inquiry is particularly grateful for the feedback received from John’s Campaign and Relatives & Residents Association in their written submissions. The detail of this feedback and other such feedback will be taken on board for future webinars and communications about Every Story Matters, in particular regarding the participation of individuals with nonverbal communication needs.

The Inquiry team acknowledge the importance of Every Story Matters hearing from a diverse range of people who have been impacted and further details will be provided in due course.

I turn finally to commemoration. In order to fulfil its commitments to commemoration, the Inquiry has consulted widely on this issue. The result is that you, my Lady, have decided a tapestry should be created as a physical installation. Each panel will be created by a different artist, working with a particular community or communities to develop it. The intention is for the first panel to be unveiled at the UK’s hearing centre in time for the first substantive hearings for Module 1 in June this year. This panels will be transportable to wherever we hold hearings in the UK so that people in Wales will be able to see them if they attend a hearing in person.

It is also planned that impact videos providing relevant insight into the harm and suffering caused by the pandemic will be shown at the start of each substantive hearing session. This will include the Module 2B substantive hearings in Wales. I would like to make special mention to the Welsh Covid Bereaved who have worked with the Inquiry team to pilot the first tapestry panel and shared their stories on camera last week, which will form part of our impact films to be played in June.

I hope what I have said brings those with an interest in Module 2B up to speed with the developments in our investigation and progress and sets out a roadmap as to how we intend to progress matters going forward, up to the point of our substantive public hearings in Wales next year. As already indicated, a further preliminary hearing for Module 2B is likely to be held in November this year, though I would reiterate that there will continue to be formal and informal opportunities for Core Participants to contribute to the work of the Inquiry.

May I again, on behalf of the Module 2B team, offer our thanks for the helpful contributions made by the Core Participants to this hearing and the continued contribution of Core Participants and other material providers to the work of the modules which proceeds at pace but thoroughly.

Unless, at this stage, my Lady there are any further matters with which I can assist you, those are my submissions.

Baroness Hallett: Diolch, Mr Poole. I’m very grateful to you, thank you.

I think it is now time to call on Ms Bethan Harris.

Submissions by Ms Harris

Ms Harris: Good morning. Bore da.

Baroness Hallett: Bore da.

Ms Harris: I appear to make submissions on behalf of Covid-19 Bereaved Families for Justice Cymru and I will confirm straightaway that I won’t be going over the time that has been allocated to me and if my Lady is content I propose to speak in Welsh initially and then to translate the Welsh language part of my submissions into English and then to continue in English. Thank you.

Fel y gwyr y cadeirydd, grwp ydy Covid Bereaved Families for Justice Cymru gyda ffocws yn gyfangwbl ar ymgyrchu dros, a rhoi llais i rai sydd mewn profedigaeth oherwydd Covid-19 yng Nghymru.

Byddaf yn delio a’r testunnau canlynnol – Rhestr o faterion, Ceisiadau Rheol 9, tystiolaeth arbenigol, ac yn fyr – y broses o ddatgelu a trefniadau ar gyfer gwrandawiadau a delio a tystiolaeth. Bydd hyn yn rhannol drwy gyfrwng y Gymraeg at wedyn yn Saesneg.

Rhestr o faterion

1. Diolch I’r CTI y bore ma am y wybodaeth mai’r bwriad you darparu rhestr o faterion erbyn dyddiad penodol.

2. Mae hi wedi bod o gymorth mawr i gael y rhestr dros dro o faterion are gyfer modiwl 1 – mae hon yn ddogfen gynhwysfawr a defnyddiol.

3. Mae yna fantais mewn cynhyrchu rhestr or faterion dros dro cyn gynteg ag sy’n bosib.

Unwaith bod gan y cyfranogwyr craidd y rhestr materion bydd yn bosib paratoi yn fwy effeithiol.

Rheswm arall pan mae’n bwysig I gael y rhestr o faterion yw bod modiwlau’n cydberthyn au gilydd, a dim ond pan gawn weld rhestri materion i’r modiwlau sydd a testunnau sydd berthnasol a’u gilydd y gallem eu rhoi ochr wrth ochr a sicrhau bod materion sydd yn ymwneud a Chymru ddim wedi syrthio i fwlch rhwng modiwlau gwahannol.

I droi at beth dylsid cynnwys yn y rhestr o faterion ar gyfer Modiwl 2B.

4. Yn ein cyflwyniadau ysgrifenedig rydym wedi nodi rhai o’r materion my CBFJ Cymru o’r farn sy’n bwysig i’w cynnwys ym Modiwl 2B, sef yn arbennig:

1. Sut ac i ba raddau wnaeth Llywodreath Cymru a llywodreath y Deyrnas Unedig ryngwethio a chyfarthrebu a rhannu gwybodaeth hefo eu gilydd – yn arbennig gwybodaeth wyddonol ac arbenigol

2. Beth wneath Llywodreath Cymru yn wahannol – camau a gymerwyd neu a na gymerwyd – a oedd yn wahannol i’r rheiny a gymerodd llywodraeth y deyrnas unedig. Rydym wedi gweld yr awgrymiad synhwyrol a wnaed yng nghyflwyniadau ysgrifenedig y Mudiadau am Bobl Anabl – sef i arbenigwr i greu nodyn dros dro yn crynhoi gwahaniaethau allweddol rhwng rheolau a penderfyniadiau a wnaethpwyd gan y naill lywodreath, ac mae’r grwp dwy i’n ei gynrychioli yn cytuno byddai maintais mewn cael dogfen o’r math, a fyddai’n darparu man cychwyn i’r tystiolaeth a dadansoddiad i’r rhan yma o fodiwl 2B.

As my Lady is aware, Covid-19 Bereaved Families for Justice Cymru are a Wales-focused group dedicated solely to campaigning for and giving voice to those bereaved due to Covid-19 in Wales.

I propose to address you on the scope, the Rule 9 requests, expert witnesses and then briefly on disclosure and arrangements for evidence and hearings.

First with regards to scope, we have heard the helpful submissions from counsel to the Inquiry this morning and the aim that a list of issues will be made available by 12 May. We welcome bringing forward the provision of the list of issues and the provisional list of issues for comments that would be as soon as possible and we note that the provisional list of issues that is being made available in relation to Module 1 is a very comprehensive and helpful document.

We note also that, by having such a document, it enables progress to be made much more quickly in preparation for the main hearing and, inevitably, modules are inter-related and it is only when we have the list of issues for closely related modules, so that we can look at them together and compare them, that we can be sure that issues concerning Wales have not fallen between the gaps. This is the subject upon which we have also made submissions in relation to Module 3.

As to what the issues should include to be on that list, in the written submission, on behalf of the Covid Bereaved Families, we have highlighted some of the matters that the group consider are important to include in this Module 2B and these are, in particular, how and to what extent the Government of Wales and the UK Government interacted and communicated and shared information with each other, in particular scientific and expert knowledge and what the Welsh Government did differently, steps taken or not taken, that differ from those of the UK Government.

We have seen the helpful suggestion in the written submissions on behalf of the disabled people’s organisations that there should be a provisional note summarising the key differences in regulations and decisions and those whom I represent endorse having such a document which, as regards this aspect of Module 2B, would be a good starting point for the evidence and analysis.

Turning now to Rule 9 requests. The main submission on behalf of the bereaved families is as to the importance of including vulnerable and at-risk groups to whom Rule 9 requests are made and to include, within those groups, groups representing older people in Wales.

Covid-19 Bereaved Families for Justice Cymru very much welcome that a corporate statement has been requested from the Older People’s Commissioner for Wales and think this would be an important document but the group wishes to make the point that it is, of course, important that there are different perspectives as well that are sought from a wider group of organisations working on the ground.

As regards Rule 9 requests, we, of course, have seen the monthly updates from the CTI and they provide very helpful information about the groups upon whom Rule 9 requests have been served and we have heard also the very reassuring submissions that have been made this morning as to the further service of Rule 9 requests and the attention that is given to vulnerable and at-risk groups.

Our concern is that, as has been mentioned, that groups that speak on a nationwide basis may not be able to pay sufficient focus to Wales and we know that the CTI has heard that point and taken it on board.

We are also concerned as to whether there are sufficient groups upon whom Rule 9 requests have been served within Wales, that are Wales-specific groups, that are focused on older people. We ask that consideration is given, as I know it will be, having heard the reassurance from the Inquiry this morning – that consideration will be given to the list that we have suggested which includes at least one group relating to older people in Wales.

I wish to make some further points about the position of older people in Wales, in order to highlight the importance of bringing forward evidence about this group of the population in Wales. The numbers of older people, as a proportion of the population, are relatively high in Wales, the group over-65 being over one fifth of the population and those over 90 being higher relatively than other parts in the UK, being 1 per cent of the population.

The pandemic had, and the Covid-19 Bereaved Families for Justice Cymru believes continues to have, a disproportionate impact on older people, in particular those living in the relatively deprived areas in Wales. A particular concern of the Covid Bereaved Families group is the extent of the hospital acquired Covid-19 in Wales and recent data shows that a high percentage of Covid-19 infection in Wales continues to be hospital-acquired infection. Covid-19 Bereaved Families for Justice Cymru are of a view that it is likely that older people feature heavily in that percentage of Covid-19 infections that are acquired in hospitals.

For all these reasons, the bereaved families are concerned that the Inquiry should have a complete picture of the impact of the pandemic on older people in Wales.

I would like to touch on that matter again when I deal with expert evidence and, turning now to expert evidence, there are two matters upon which I would like to address the Inquiry. We call on the Inquiry to instruct an expert to report specifically on the devolved decision making structures in Wales and how they interrelate, including in an emergency situation, and we have heard what the CTI submissions have said this morning and that they are considering such a report to be brought forward, and we are very reassured by that consideration and we endorse it.

The Welsh perspective and the impact of devolution on the competency and resilience of the Welsh Government does need to be properly explored, in our submission, and properly understood in this Inquiry. This report would provide an essential evidential foundation from which the issues of concern to the Inquiry can be explored and developed in relation to Wales. This is particularly so, given that there will inevitably be limited time for the oral hearing. Put simply, it saves time to have such a report.

There is a need, we submit, for detailed expert evidence such as this focusing specifically on the Welsh perspective, as regards devolved institutions. We have drawn attention in our written submissions as to how, when matters are dealt with at a national level, there does tend to be an emphasis on UK-wide institutions and English institutions, rather than those of the devolved nations.

I would like to mention the expert evidence that is to be brought forward in relation to structural discrimination and Covid-19 Bereaved Families for Justice Cymru welcomes your Ladyship’s rulings on reporting on structural racism and for the exploration of expert evidence on discrimination on other grounds and on intersectional issues and endorses the invitation that was made this morning in submissions to the Inquiry for there to be a Wales-specific reporting on these issues, in relation to structural racism and other forms of discrimination.

I would like to address the Inquiry specifically with regards to the importance of bringing forward expert evidence with regards to the impact of the pandemic on older people in Wales. This is necessary in my submission in order to understand the characteristics of this at-risk cohort and it is also necessary in order to have a clear evidential foundation as to the impact of the pandemic on this group.

Again, it will save time at the hearing where time will inevitably be tight. It will contribute towards ensuring that matters concerning Wales are properly scrutinised, do not get lost and not properly looked at in the great amount of material that there is to be considered in this UK-wide Inquiry and so that the best time can be made out of the time that there is for the focus on Wales.

Again, we would like the opportunity as a group to communicate with the Inquiry with regards to suggestions for a suitable expert to deal specifically with the older people dimension.

Turning briefly to disclosure. We have heard that the Inquiry team is, of course, doing its best to deal with disclosure as quickly as possible and we encourage them, of course, to continue to do so and we are very grateful for those efforts.

With regards to the hearing timetable, we have heard this morning that it is proposed that the length of the hearing will be three weeks. That, of course, is a positive development. Nevertheless, there is concern amongst those in the group whom I represent about there being sufficient time for the scrutiny that is required as a result of this hearing in Module 2B.

There is a deep concern on the part of the group that it’s proposed to cover the impact and handling of the pandemic within what was two weeks but even now three weeks. The group is concerned that this may not allow for adequate scrutiny nevertheless, even with the extra time. There is no other Inquiry for Wales, the First Minister having, of course, refused a Wales-specific Inquiry akin to the Scottish Public Inquiry in reliance on this Inquiry. The concern is that the devolved Welsh Government will escape full scrutiny and we invite consideration of a further extension of the time allocated to this module.

We once again would like to endorse and reiterate the suggestion which has been made by the TUC that a short hearing be listed after all the Module 2 submodule hearings are completed in order to take account of the lessons learned across all the modules.

Finally, with regards to hearings, we hear that it is the intention that the Inquiry will provide translation facilities into Welsh and, of course, we welcome this.

With regards to the evidence proposal and Rule 10, we welcome the process of providing for an informal approach in order to be able to speak to the Inquiry team in relation to the evidence proposals and proposed questions and we note the confirmation that this informal process does not, in any way, impede the rights under Rule 10.4 to apply to the Chair for permission to ask questions or CPs to be able to ask such questions of witnesses in their own right and we submit that this is an important right which serves to increase public confidence in the Inquiry.

Finally, Covid-19 Bereaved Families for Justice Cymru welcomes the work on commemoration and Every Story Matters and wishes to reiterate its commitment to assisting with the development of this project.

Thank you. Those are my submissions.

Baroness Hallett: Diolch, Ms Harris. Very grateful to you, both for your helpful submissions and for the extremely helpful co-operation members of Bereaved Families for Justice Cymru have been giving to the listening exercise and commemoration project. I hope that those who participated in the filming, which is obviously so important for us, didn’t find it too distressing but you have been giving us great co-operation and we are really, really grateful. Thank you.

Ms Harris: Thank you.

Baroness Hallett: Mr Straw, I think, next.

Mr Straw: Good morning. Can you hear me, my Lady?

Baroness Hallett: I can Mr Straw, thank you.

Submissions by Mr Straw

Mr Straw: Thank you. Bore da. I represent, as you are aware, my Lady, John’s Campaign and the Relatives & Residents Association, who broadly represent the interests of those in care, their loved ones and their carers.

If I may, I propose to address seven topics and to do so roughly in the order that they appear in our written submissions. The first is the question of timing of the hearing.

The Inquiry, of course, faces a gargantuan task and has already made extremely impressive progress in its various modules but I would like to highlight, if I may, one of the reasons why delay in this area is a concern to my clients. There is a pressing need to make recommendations which concern the care sector in particular and that’s because restrictions and very onerous restrictions continue to be in place in the care sector. It is very important for the carers, the people who are being cared for, and so on, that those restrictions are reviewed and changed if necessary.

The next topic is the list of issues. We welcome counsel to the Inquiry’s proposals about this, including the date, which is a prompt date of 12 May, that the list of issues will be produced. It is important that those are finalised as soon as they can be because those should be used to inform further requests under Rule 9, requests for disclosure and potentially decisions about expert evidence.

The third topic is a rather longer one, it is the question about additional witnesses and whether additional witnesses, over and above the very long list that have been already Rule 9-ed by the Inquiry, should be called. In our written submissions in paragraph 7 we touch upon this issue but note there that we are taking instructions in light of the recent disclosure about whether additional witnesses ought to be Rule 9-ed.

We have now taken instructions about that and have some more detail we can put forward about our suggestions. We will write a letter with this detail in it to make sure that it is all entirely clear and in writing but I hope it assists just to go over our suggestions at this point.

Our main concern is the issue of the extent to which the care sector featured or should have featured in core decision making.

Now, I am sure that won’t be controversial, not least because in the letter granting our clients CP status, my Lady, you said that our clients were well placed to assist the Inquiry in Module 2B as to whether those interests – those whose interest we represent, including those requiring care and those providing such care were considered as part of the process of core political and administrative decision making in response to Covid-19.

I hope it helps to briefly summarise a few of the reasons why it is important that the interests of those in the care sector were considered in respect of core decision making. The care sector was really at the sharp end of the pandemic response. That’s, in part, because those in the care sector were among the most vulnerable in society but it is in part because the need for care meant that the restrictions which were then imposed in many cases denied people the treatment, the care, the support and the company that they so dearly needed.

There is another reason why the care sector should have had an important part in core decision making which is that it had a knock-on effect for a number of other areas of government, for example decisions as to whether people could be discharged from hospital, often depended on the availability of care outside hospital.

The current proposals by counsel to the Inquiry as to which witnesses will be called, relevant to the issue of care core decision making in Wales, appear largely to be in annex A to the update note in December 2022, under the heading of “Older People”.

Now, three of those – Age UK, Care England and the National Care Forum – appear to us to be England-based and to not include Wales. So it appears to us that they have relationships with Welsh equivalents but don’t necessarily cover that.

The fourth proposal in the CTI’s older people category was the Homecare Association. We understand that is a UK-wide body. It is an important body but it is relatively limited so it covers homecare providers.

With that context in mind, we have a number of further suggestions for additional witnesses, which cover care and Wales specifically. So the first of them is Age Cymru, which is, as we understand it, the equivalent to Age UK in Wales, so it covers those needed care. Secondly, Care Forum Cymru, that, as we understand it, is the equivalent to the National Care Forum but the Welsh version, and that is representing providers. Thirdly, the Carers Trust Cymru or alternatively Carers Wales, and that’s a body which represents unpaid carers.

The fourth suggestion we have is Professor Adam Gordon, he is a suggestion for an expert witness in this area. He is the professor of care of older people in the University of Nottingham. He was the author of the British Geriatrics Society Guidance on Covid-19 in Care Homes and we will provide a CV so that the Inquiry team can consider him and make decisions about that.

Sticking with expert evidence, in paragraph 12 of our written submissions we made suggestions for two other experts, I hope it helps if I briefly mention those. The first of them is an expert about the issue in paragraph 8.3 of our written submissions. That is the issue of the extent to which core decisions were evidence based, for example whether evidence was obtained about the adverse impact of non-pharmaceutical interventions and how that fed into core decisions. We have suggested Professor Carl Heneghan as an expert in that area.

The second expert suggestion relates to the issue in paragraph 8.4 of our submissions. This is the extent to which individual autonomy, individual rights and capacity were taken into account in making core decisions and we have suggested Dr Lucy Series gives evidence about that. She has expertise in law, policy and medicine, so may be well placed to assist the Inquiry on that point.

So that’s additional Rule 9s. The fourth issue which I would like to turn to, if I may, is further questions to existing witnesses or further requests for disclosure. Now, we are in difficulty at the moment to identify specific further questions or specific further disclosure and that’s because we haven’t yet received the Rule 9 statements themselves or the majority of the disclosure that comes with them. So, at this stage, all we have done is put forward some suggestions for general questions and we have asked the Inquiry legal team to consider them and consider ensuring that sufficient witnesses have been asked about them and sufficient questions have been asked.

But just to give a couple of examples of those general topics we have put forward: they are set out in paragraph 8 of our written submissions, together with our 15 February letter.

One example is Public Health Wales, so the extent to which advice by Public Health Wales was taken into account in core decision making. We give an example about that which is a particular document where Public Health Wales in July 2021 recommended that care homes no longer should be closed, in other words the closure of care homes was no longer proportionate. We give that as an example of an issue which we suggest should be explored, the extent to which that Public Health Wales advice was followed in core decision making.

Another example is in paragraph 8.2 of our written submissions, which concerns the balance between what’s been called direct harm and indirect harm in core decision making. Direct harm is defined, as I understand it, in the disclosure as being the harm that comes from Covid, whereas indirect harm is the harm that comes from the response to it, so the measures that had been put in place to protect people from Covid.

The issue is to what extent in core decision making was that balance taken into account. So were there structures in place or systems to help people make that balance, were there decisions made centrally or policies put in place regarding how that balance should be struck and how it should be analysed. Again, we give an example in our submissions about the care context and, again, really the sharp end of decisions of balance made in this field and suggest that statements are taken and questions are asked about particularly that issue, about how the balance was struck.

Moving forwards, we would be grateful for an opportunity to put forward more specific suggestions to the Inquiry legal team about what further questions should be asked and what further disclosure should be obtained. We would be much better placed to be able to do so once we have seen the disclosure and the witness statements, of course. If we do so now it is likely to lead to duplication but we propose that once we receive the first bulk of witness statements and disclosure, then Core Participants at that point have an opportunity to make suggestions to the Inquiry legal team as to what further specific questions should be asked and then it is factored into the timetable the Inquiry legal team’s consideration of that matter, any further requests that they decide are appropriate and then time for the Rule 9 responders to produce further witness statements and produce further disclosure.

It may be difficult to do it at this stage but we suggest consideration is given to timetabling those various steps, so the production of the first round of disclosure to us, our responses to it, specific questions raised by us, CTI’s consideration and then responses by the Rule 9 individuals.

I hope it helps, at this stage, just to give a couple of examples of the type of specific questions which we may ask in order to illustrate the sort of process that we are proposing. One broad issue that we have raised is the extent to which, in core decision making, existing legal and regulatory duties were taken into account.

One quite specific topic in that context concerns the Welsh Government dementia strategy. This was a strategy brought in before the Covid response and the question is to what extent was that taken into account in core decision making. We would seek to ensure that the Inquiry has asked the part of the Welsh Government that was particularly responsible for the dementia strategy – and, as we understand it, that is the Dementia Oversight of Implementation and Impact Group that monitors the implementation of the strategy – we would seek to ensure that the Inquiry has made Rule 9 requests for a response from that group, that the Inquiry has asked for relevant documents, so there is a dementia action plan. There was a policy concerning Covid and dementia that was brought in in September 2021, and those minutes of the Impact Group, and we would also like to ensure that specific questions were asked of the relevant witnesses about this issue.

Another example – and I hope this helps to illustrate the approach that we are proposing – is the public sector equality duty. Again, we would want to ensure that questions have been asked of relevant witnesses about whether that duty was complied with and records of any consideration of that duty in terms of core decision-making.

There are also likely to be further follow up questions that we will propose in respect of the witness statements and the disclosure that’s ultimately received. To pick a couple of examples, the disclosure so far contains, in certain respects, some pretty broad brush assertions. So, for example, responses along the lines of “We engaged with stakeholders”. Now, if the witness statements themselves are similarly broad brush, then we would invite the Inquiry to send further specific questions to those Government bodies and others who respond in that way, for example, “Exactly how did you engage, with whom and what did you say?”

Similarly, so far the disclosure contains little about the impact on individuals and how that fed into core decision making. So far, it largely concerns financial or structural issues. Now, we appreciate, of course, that we have had very little of the disclosure that’s pending so far but, again, that is an area where, if the witness statements themselves are similarly broad brush, then we will invite the Inquiry to make specific requests along those lines.

So that is the topic of further witness questions.

The fifth issue that I hope to cover is the Rule 10 proposals. Thank you for providing us at this early stage with those proposals, it is very useful. In paragraph 13 of our written submissions we raise a number of questions for clarification as to how that might work. Two examples are as follows:

Firstly, the process that’s being proposed largely concerns preparation in advance but often the most important questions will arise during the witness’s own evidence or during evidence given shortly before that witness.

We invite the Inquiry to ensure that some process is brought in to ensure that the Core Participants can effectively participate in those sort of later stage questions. So they can propose questions that arise from the witness’s own evidence or evidence that’s given shortly before it.

Now, it may be and in our experience we find it often is the most effective and efficient way of doing that, simply to give Core Participants an opportunity to ask their own questions, provided, of course, they are limited to exactly what’s come on the day but, at the very least, we invite the Inquiry to consider that matter.

Another example of the issues of clarification is about expert topics. So, it may be that some of the topics that are going to be put to witnesses, the Core Participants, particularly Core Participants, have a special expertise in that topic. For example, it may be about disability and you may think that the disability groups are best placed to ask those questions. We would ask the Inquiry team to consider at least whether in certain respects Core Participants might be asked to put questions in the first instance, if they have a special expertise.

The sixth topic is another short one. It is parliamentary privilege. We agree with the approach proposed by counsel to the Inquiry and agree also that no ruling is necessary from you at this stage, my Lady. But in our submissions we drew attention to a few of the exceptions that arose to the ordinary rule against parliamentary privilege. The main reason for doing so at this stage is really to encourage the people who are going to be responding to the Inquiry’s requests for information about this area to be open and thorough about it and, as we explained there, there are a number of exceptions, if it comes to it, to the parliamentary privilege rule which may be relevant to this Inquiry.

The last area concerns the listening exercise. In Module 3, we made submissions about the listening exercise, which I don’t propose to repeat here, other than just to briefly summarise. So our submissions firstly sought clarification on how the listening exercise will inform the evidence sessions and the main reason for that is to encourage people to engage in the listening exercise. People are much less likely, as far as we understand it, to engage if they think there is no point doing so.

So we sought clarification as to how it may inform the evidence. We also sought clarification in respect of reasonable adjustments, so what adjustments are made to ensure that people who have difficulty communicating and understanding can be involved in it? The reason for raising those points in this module is that, if anything, there is a more pressing need for those changes to be made in respect of this module and that’s because of the timetabling and the hearing here being sooner than that in Module 3.

As we understand it, the process is that there will be the listening exercise first, a report produced summarising it and then that will be disclosed to Core Participants. That would indicate that the listening exercise itself, so far as it relates to this module, needs to conclude within the future three or four months, in order that it can be properly taken into account.

So we suggest that there is a pressing need for those clarifications to be made.

That’s all I hope to address unless there’s anything else you would like me to address, my Lady, those are my submissions.

Baroness Hallett: No, I’m very grateful, Mr Straw. Thank you very much. You reminded me of my words when I granted the two organisations you represent Core Participant status that they would be well placed to assist and that’s exactly what they have been doing. I’m very grateful to you for your submissions and their very constructive response.

As far as the listening exercise is concerned, may I assure everyone there is very much a point to participating in it. I wish to hear from people and I wish to bear very much in mind and take into account when reaching any conclusions and making recommendations the experience of people across the United Kingdom of the pandemic. So please reassure those you represent that we are doing everything possible to allay any concerns that Core Participants may have and to encourage them to participate in what would be a very, very purposeful exercise.

So thank you very much for your submissions. I think now will be time to take a break. We shall come back after the break to Mr Jacobs, Mr Friedman and Ms Henke. Thank you.

(11.13 am)

(A short break)

(11.30 am)

Baroness Hallett: Apologies for the fact that I forgot to say how long the break would be today.

Right, I think now it is time to call on Mr Jacobs for the Wales Trades Union Congress.

Submissions by Mr Jacobs

Mr Jacobs: Good morning, my Lady, bore da.

I represent the Trades Union Congress, the TUC, and also the Wales Trades Union Congress. The TUC in this Inquiry seeks to bring forward the voice and experiences of the 5.5 million individuals who make up its 48 member unions. That includes members who live and work in Wales.

The Wales TUC is part of the TUC, it represents in the region of 400,000 workers in Wales through its affiliated unions. Those member unions span an array of sectors, all of which were affected by the pandemic. The members of the affiliated unions include a very significant number of key workers, who provided vital services, who kept people in Wales cared for, fed, able to access basic goods and services they needed to live and tended to them when they were sick.

For the purposes of this module, the Wales TUC has provided a detailed response to a Rule 9 request from the module to the team. My Lady, for the purposes of these oral submissions I am going to emphasise a few points of the written submissions. Of course, I stand by the remainder.

The first issue I’m going to turn to is the timetabling for the final hearing.

As I understand matters, it remains the case that 14 hearing days are timetabled to consider the core political and administration decision making in Wales throughout the pandemic. With some time allocated for submissions, it is perhaps just 12 or 13 days of oral evidence. It is presently the only hearing stated to be taking place in Wales and focused exclusively on the pandemic in Wales. Without a list of issues or the opportunity to review any witness statements, it is, of course, difficult to meaningfully submit as to how long precisely the hearing needs to be. But we can say, however, that to us 14 days seems extraordinarily short.

As we see it, there are really two difficulties. The first is a problem of appearance, of it appearing that the Wales hearing is the poorer relative of more robust consideration given in relation to Westminster decision making in Module 2. There is also, secondly, the problem of being able to meaningfully test an array of complex issues in a mere 12 or 13 days of evidence.

An Inquiry of this scale, which does have a compelling need to progress speedily, must inevitably proceed with taking a significant proportion of evidence in writing, rather than orally. That is understood. Even so, the current estimate appears to us to be problematically short.

As you will have seen in our written submission, for the present what we ask is that whatever practical arrangements the Inquiry is making for the hearings in Wales, it retains scope for extending it. It may be however, my Lady, that you decide, instead, to grasp the nettle now and extend the timetable. Perhaps realistically, that will be inevitable.

When it comes to the next preliminary hearing, we will have a significant number of witness statements before us, perhaps a deluge of documents and it may be very helpful to know in advance of that preliminary hearing, rather than after, whether there is scope for extending the timetabled hearings.

In relation to the next preliminary hearing, Mr Poole has indicated this morning a proposal that it be held in November of this year. We say that seems to be eminently sensible. We agree that any later would be too late, with the substantive hearing starting at the end of the following February.

My Lady, I turn to Rule 9 requests. In relation to evidence sought from bodies relevant to at-risk and vulnerable groups, you will have seen the concern raised in writing from the TUC and the Wales TUC as to Rule 9 requests made across the four parts of Module 2 and the importance of seeking Welsh-specific evidence.

All I would say about that now is that counsel to the Inquiry, from remarks made this morning, has clearly heard the points and we are very grateful for that. For the present, I say no more, other than if there is a need in due course to make further Rule 9 requests of Welsh bodies, we will of course assist where we can.

The Inquiry has already sought expert evidence on the arrangements for devolution from Professor Henderson, as we have heard. In our written submission, paragraph 10, we suggested that there would be value in obtaining a report specifically on Welsh devolution from an expert who is specifically immersed in the Welsh-specific issues and we note with interest that an identical suggestion has been made by the Covid-19 Bereaved Families, Cymru. For our part, we suggested Professor Emyr Lewis, from Aberystwyth Law School who was recently appointed on a panel of experts advising the Independent Commission on the Constitutional Future of Wales and has given evidence to UK and Welsh parliamentary committees on devolution.

The Covid-19 Bereaved Families Cymru have made a different suggestion as to the identity of the expert and we note that with interest and, from our perspective, it is the principle of seeking such evidence about which we have a particular strong view, rather than who that person may be.

I turn then to the importance of seeking, in this module, Rule 9 evidence from the Health and Safety Executive. We have previously invited Rule 9 evidence from the Health and Safety Executive, the HSE, in Module 2 and indeed in other modules and we understand that the Module 2 team is now doing so. That is welcome and important. The HSE is the GB-wide regulator for health and safety at work. It had a role to play in providing guidance to employers and also in the monitoring and enforcement of workplace safety, including non-pharmaceutical interventions.

It is important, however, in our submission, that a bespoke Rule 9 request is made of the HSE by the Module 2B team because the position in Wales does give rise to distinct issues, which warrants distinct and separate consideration.

The framework for the HSE is different in Wales as public health responsibility is devolved, albeit the HSE has workplace health and safety jurisdiction. The Welsh Government emergency Public Health Legislation gave powers to the police and local authorities to enforce social distancing in all premises and the HSE and local authorities were responsible for local enforcement arrangements for the emergency legislation, complimentary to health and safety law.

The Wales TUC highlighted, during the course of the pandemic, a lack of coordination in ensuring workplace safety. Partly in response to those concerns, the Welsh Government set up a health and safety forum for Wales which brought together the HSE, local authorities, employers and the Welsh Government in their attempt to improve regulation in Wales.

It is important, we say, that we better understand the HSE’s decision-making actions in Wales during this period and, of course, its interactions with the Welsh Government as is the key focus of this module.

We say a specific Rule 9 is important, not only to capture those specific issues but there may also be a need for evidence from the HSE at the final substantive hearing and it may well be that the HSE witness best placed to give evidence in relation to Wales, initially via a Rule 9 response but also in oral evidence, may not be the same witness best placed to give evidence in relation to England and interactions with Westminster.

My Lady, that’s what we had to say about Rule 9s. On the seeking of expert evidence regarding structural discrimination, we have heard an invitation from counsel to the Inquiry this morning for you to adopt the same approach you have adopted in Module 2 in this module. All I say, on behalf of the TUC and the Wales TUC, is that we endorse that wholeheartedly.

My Lady, one issue that we have raised previously and I do raise again is what we have described as “strand tying” submissions. As it appears to us, once the Inquiry has heard the evidence in Module 2 but also in modules 2A, 2B and 2C, there may well be a need for a short strand tying hearing, eager to hear evidence where issues have cropped up and/or for submissions and Ms Gallagher addressed you on those in Module 2A and I’m not going to repeat in full what she said there. What we invite is that the Inquiry should keep in its plans a provision for such a hearing to be facilitated.

Finally, my Lady, and briefly, the listening exercise. The short point is that we strongly endorse the importance of the listening exercise and we wish to put that on record. It will be important that the listening exercise captures the experiences of those at work during the pandemic and both the TUC and the Wales TUC stands ready to assist in that regard.

My Lady, unless I can assist further.

Baroness Hallett: No, thank you very much indeed, Mr Jacobs, and thank you also for the support that you offered the listening exercise and I know that we shall be calling upon offers of assistance of that kind. So thank you very much indeed.

Mr Friedman KC?

Submissions by Mr Friedman

Mr Friedman: My Lady, we act for Disability Wales and Disability Rights UK and this is their first appearance in Module 2B and can we thank Mr Poole KC and his team for the way they have updated us and welcomed us into this part of what is a unique four nation Inquiry process.

As we did with Scotland last week, can I briefly summarise some Welsh reference points that provide an initial route into understanding how the risk to disabled people was governed during Covid.

My Lady, you and your team must adopt many lenses to scrutinise the events this Inquiry is tasked with exploring. We speak for a particular but essential lens because of the triple jeopardy that disabled people faced during the pandemic, which was: first, far more fatal Covid outcomes; second, being cut off from other acute healthcare and treatment to fatal and damaging effect; and, third, the disproportionate impact of lockdowns and related measures.

In Wales, the statistics on that triple jeopardy are stark. 68 per cent of deaths from Covid-19 between March and July 2020 were among disabled people. Their exposure was foretold by Government studies in the two years before the emergency. 39 per cent of disabled people in Wales were in poverty compared with 22 per cent of non-disabled people and the poverty rate amongst disabled people in Wales was the highest in all of the UK. There was lower mental wellbeing among disabled adults, disabled people faced significant barriers in accessing healthcare, including access to health checks, suitably trained staff and rehabilitation services.

Although not its authors, the Welsh Government recognised that austerity law and policy, reserved to the UK Parliament, had “blighted the lives of disabled people in Wales and had a devastating impact on thousands of individuals, carers and families”.

In terms of using human rights approaches to comprehend what occurred in the relationship between the state and disabled people during Covid we ask you to note that the approach to disability and related rights in Wales is different to the law and policy of the UK Government in four ways:

First, the Welsh Government produced a framework for action on independent living in 2013 and updated it in 2019, which sets out how it plans to fulfil its obligations under the United Nations Convention on the Rights of Persons with Disabilities, the UNCRPD. You know something similar has been done in Scotland.

However, Wales is the only part of the UK where codes of practice issued under the Social Services and Well-Being (Wales) Act 2014 require local authorities to have due regard to the UNCRPD when exercising their functions in relation to disabled people and their carers. Secondly, the obligations under the Convention that disabled people must be included in law and policy making to collaborate in their co-design and co-production was accepted by the Government of Wales prior to the pandemic.

It also finds statutory expression in the Well-Being of Future Generations (Wales) Act 2015, that requires public bodies to adopt an integrated, inclusive and collaborative approach to service delivery. The Welsh Government sees this as an obligation to focus on giving people and communities a voice in how their services are provided.

Thirdly, the Welsh Government, like the Scottish Government, but not yet the UK Government or Northern Irish Government, has formally supported the social model approach since 2002 and reaffirmed its commitment to it in December 2022. In the words of the Disability Rights Task Force it seeks:

“… solutions to challenge the structural, physical and attitudinal barriers that disabled people face. Structural discrimination is therefore taken as a given and its recognition an essential condition for change. Likewise, intersectional understanding is accepted as a necessary discipline by the Welsh Government declaring in terms that it is very important that disability action policy is closely linked to other aspects of equality, including other protected characteristics, as defined by the Equality Act …”

It goes on to add:

“… and perhaps most importantly issues relating to income and poverty.”

Fourthly, the mitigation of inequalities has been fashioned into legal duty prior to the pandemic. The future generations’ wellbeing Act of 2015 placed on a statutory footing a set of wellbeing goals that includes developing a more equal Wales, defined in section 4 of the Act as a society that enables for people to fulfil their potential no matter what their background or circumstances, including their socioeconomic background and circumstances.

Since March 2021, Wales has brought into force section 1 of the Equality Act 2010 that mandates public authority attention to the desirability of an exercise in relevant functions in a way that reduces inequalities of outcome resulting from socioeconomic disadvantage.

Drawing these four features together, my Lady, we provisionally suggest to the Inquiry that there are lessons from and for Wales. There is a body of law and policy concerning human rights, equality and wellbeing in Wales that distinguishes it from the other four nations, including that it not only recognises the value of disabled people’s lives but it is mindful of some aspect of asset redistribution to enable those lives to better.

We will urge the Inquiry to ask what difference this made and how it might make more of a difference if scaled up into a UK-wide integrated focus on securing the resilience of disabled people in future emergencies.

For its part, Disability Wales recognises the efforts of its government but equally draws attention to the gap between rhetoric of national policies and what happens on the ground. The deficiencies of engagement, planning, data collection and austerity economics, especially at the local level all played their part in Welsh disabled people’s triple Covid jeopardy.

We commend to the Inquiry what is said in the Welsh Government Commission report, Locked out: liberating disabled people’s lives and rights in Wales beyond Covid-19. Despite the official recognition of the social model, the report identified a resurgence of medical and vulnerability models that informed the response to Covid. When non-disabled people’s experience of normal life came under threat by a pandemic, government and administrative decision making rapidly became thoughtless about the implications of Covid response measures on disabled people’s lives. As the Locked out report puts it, this kind of thoughtlessness helps to illustrate a much more pervasive problem, the way taken-for-granted, ableist assumptions dominating decision making that can have life limiting consequences for disabled people.

My Lady, we have addressed you in Module 2 and 2A hearings on how expertise and experts might be viewed from the point of view of disabled people’s organisations. For Wales, we therefore add the following five points:

First, on present disclosure it appears that there was no expertise regarding disability present at the Welsh Technical Advisory Group which advised its Government in parallel with SAGE. You have heard that the response to the Rule 9 requests from members are awaited. However, unlike in the other four nations and more generally for the UK Government, the Deputy Minister in Wales convened a Disability Equality Forum which met five times in the four months following the lockdown and which disability Wales participated in. The disabled people’s organisations were also enrolled into a Covid-19 Moral and Ethical Advisory Group.

Second, we contend that part of the gap in real-time expertise can now be filled with disabled people’s organisations. As the updated framework for independent living in Wales puts it, “Engaging with people is the only way of knowing that services are providing what people need and want and can generate better ideas and more innovative approaches”. Disability Wales has taken a key role in that process in its country and it should be enabled to do the same in this Inquiry.

Third, we support what other CPs have said, Ms Harris and Mr Jacobs this morning, as to whether the forthcoming reports on devolution will need to be supplemented by devolved power experts for Wales as a discrete nation. We welcome Mr Poole’s indication this morning that this will be kept under consideration and that may need to be considered for other submodules.

Fourth, we also endorse what has been said by Ms Harris on behalf of Bereaved Families for Justice as to the need for in-depth focus on older people.

Fifth, following the Module 2 ruling on expert evidence and structural discrimination and as my Lady moves towards assembling a small group of experts and thinking about how inequalities impacted on the pandemic response, it may help to bear in mind that in civil contingency theory of the UK Government, there is a key principle of resilience. We apprehend that it will feature considerably in Government disclosure.

We are not against the principle, we just urge you to be wary of how its application can fall victim to ableist and other discriminatory assumptions. That is especially so when it is applied without appreciating the resources, arrangements and web of social and economic relationships that provide resilience to some but not other parts of society. Your experts and other lines of Inquiry will be helped by seeking to illuminate the distinction between resilience as a concept and reality.

As my Lady knows, we have dealt with various process matters in our written submissions and in previous hearings, such that I do not repeat them here. Because time is short and the endeavours of the Inquiry are justifiably ambitious, it has been important to highlight some key ideas and documents early. We share them with you and your counsel because, parallel to establishing the mechanics of the Inquiry’s process, must be some understanding of subject matter, particularly so in our clients’ case, namely, the disabling barriers and attitudes that were detrimentally unaccounted for by the non-disabled part of state and society in real time.

In that respect, the Inquiry process-related decisions we contend for are those which are made and if necessarily altered along the way with the situation of disabled people in mind.

My Lady, those are our submissions.

Baroness Hallett: Thank you very much indeed, Mr Friedman. As ever, you make some very important points and, as I think you know, I will very much bear them in mind and keep everything under review. So thank you indeed for your constructive suggestions.

Lastly, we turn to Ruth Henke KC for the Welsh Government.

Submissions by Ms Henke

Ms Henke: Bore da.

Baroness Hallett: Bore da.

Ms Henke: Boneddiges, my Lady, these are the oral submissions on behalf of the Welsh Government.

The pandemic, as you know, touched the lives of everyone in Wales, our families, our colleagues and our friends, our communities and the many families who lost loved ones. On behalf of the Welsh Government, we would like to take this opportunity to express again our sympathy to those affected and to all who sadly lost loved ones.

During the pandemic, the Welsh Government took difficult decisions which undoubtedly disrupted and changed people’s lives and livelihoods. Our communities and local services suffered and we are still learning of the impacts not only on the health of the people of Wales but also upon our young people, our communities and our businesses.

The decisions were made by the Welsh Government to protect Welsh citizens. At the time, the Welsh Government was dealing with a virus about which we knew very little but where we needed to act quickly. Three years on, we have greater knowledge and experience. We accept there is a real need to learn from the past, to ensure a better future for the society we serve. The Welsh Government is fully committed to this Inquiry.

To date the Welsh Government has filed with the Inquiry ten draft Rule 9 statements. Having read the written submissions filed by the other Core Participants, we thought it might be helpful if we set out briefly that the drafts filed to date include a draft of a statement volunteered by the First Minister, as well as draft statements from the Director of Legal Services, a draft statement from the Permanent Secretary, from the Chief Medical Officer, a combined draft statement from TAG and TAC, a draft statement in relation to HSSG, a draft statement on behalf of the Welsh Treasury, a draft statement from the Director of Property and Ethics, a draft statement in relation to the NHSW request and a draft statement from Dr Gill Richardson, who was, during the period under scrutiny by this Inquiry, seconded to the Welsh Government.

The Welsh Government is currently working on a further 20 Rule 9 requests and a further tranche of Rule 9 draft statements will be served in accordance with the pipeline which we have been able to agree with the Inquiry and for which we are thankful.

Responding to counsel to the Inquiry’s opening submissions on the impact on others, the Welsh Government would invite the Inquiry to consider seeking further Rule 9 statements from Wales-based organisations. We have listened carefully to the submissions on this topic already made by the other Core Participants. We support those suggestions and would add to those that they have suggested faith groups in Wales and those in Wales who advocate for those at risk from violence and domestic abuse.

Further, the Welsh Government wish to highlight to the Inquiry the statutory role in Wales of the National Adviser for Violence Against Women, Domestic Abuse and Sexual Violence for Wales. The Welsh Government supports the Welsh TUC submission in relation to the Health and Safety Executive and consider that a Rule 9 request directed to them would assist the Inquiry’s process.

The Welsh Government accepts that initially problems with technology hindered the process by which ministerial advices were disclosed to the Inquiry. Those problems, as well as initial operational difficulties, have been overcome. The Welsh Government apologises to the Inquiry for the delay that was caused and, through me, wishes to ensure the Inquiry that it is doing all it can to make up for lost time.

As at today’s date, 514 ministerial advices have been disclosed to the Inquiry. In addition, over 4,000 documents are with the Inquiry. A pipeline of disclosure into the Inquiry has been established and I can tell the Inquiry on behalf of the Welsh Government that approximately 800 other ministerial advice documents will be disclosed by the end of the week and a further 400 before the end of term.

In Wales, the relationship between the state and the citizen is one of co-production. It is accepted that a high trust and effective public service works best when the person using a service is seen as an asset, not as a problem to be solved.

The Welsh Government acknowledges and embraces a reciprocal relationship between the contributions of the public service and the service users. We accept expertise never lies solely on the side of the provider. The Welsh Government, in its decision making, draws upon the expertise of lived experience and did so in its decision making, which this Inquiry will scrutinise.

The Welsh Government has considered the written submissions of the other Core Participants who emphasised the need for the Inquiry to have evidence from service users with lived experience as well as service providers.

The Welsh Government sees the importance and value of that evidence. We invite the Inquiry to further particularise how the voice of service users will be captured by explicitly stating which are to be system-based models and which impact modules and how the interface between the two will be achieved.

My Lady, in the early history of the pandemic, it became clear that the majority of measures affecting people in Wales would be made through the exercise of public health powers and the responsibility for making decisions fell squarely and directly on the Welsh Government. Understanding the Welsh devolution settlement, how it operates in practice and its impact on the citizens in Wales is thus an integral part of understanding and scrutinising the decisions made in Wales in response to the pandemic.

The Welsh Government looks forward to reading the report of Professor Henderson and welcomes at this stage confirmation that the report is intended to fully and properly reflect the Welsh devolution settlement and how it impacted on the citizens of Wales.

In its written submissions, the Welsh Government has quoted from the note of the counsel to the Inquiry that Module 2B has a significant amount of ground to cover during its public hearing and a relatively limited amount of time within which to do so. The Welsh Government emphasises that sufficient time must be allowed to enable the Inquiry to do justice to its important work and asks the Inquiry to ensure that if extra days are needed they are made available.

The Welsh Government has considered the written submissions on behalf of the Welsh TUC and the Bereaved Families for Justice Cymru which advocate for a further hearing at the conclusions of Module 2, 2A, 2B and 2C and we consider it is well made. The Welsh Government therefore supports that submission. It is important that every opportunity is taken to learn lessons.

Turning to the listening exercise, Every Story Matters, and commemoration. The Welsh Government accepts that both are very important. It is important that everyone has the time and space to reflect and remember. The listening exercise and commemorative content, be it online, at the hearings themselves and in a physical form, must be accessible to all. It must be in a form accessible to those that need an easy reading version, those with visual hearing impairments and those who communicate in their own way and those who communicate in their own language.

My Lady, finally, diolch am wrando heddiw. Thank you for listening to me today.

Unless you have any questions for me, my Lady, those conclude the submissions.

Baroness Hallett: Thank you very much indeed, Ms Henke and, as I said earlier to everyone else, I will bear those submissions very much in mind when I make any decisions about the future progress of the Inquiry.

Mr Poole do you have any further submissions in response?

Reply Submissions by Mr Poole

Mr Poole: My Lady, you will be pleased to know I have very little to add and seek only to make four short points.

The first is to reiterate the thanks I extended earlier to all of those who have participated so actively in and around this preliminary hearing. The submissions that we have heard this morning, from our point of view, have all been incredibly helpful and constructive and we look forward to receiving, in particular, the letter from John’s Campaign and Relatives & Residents Association, setting out their further thoughts on potential Rule 9 recipients.

The second point concerns what has been said about the length of our substantive public hearing. As outlined earlier, we are loath to request more time because of the knock-on effect that that will have to the rest of the Inquiry. The best way, in our view, to try and deal with the situation is early Core Participant engagement, as I outlined earlier in my submissions, about the various ways we intend to ensure this is done and that this is done effectively.

The third point concerns the Rule 9 process. We have heard what has been said, that some of the national organisations who have been contacted may or may not be able to provide adequate information about Wales or information specific enough for certain at-risk groups for our purposes. As I explained in my earlier submissions, the Rule 9 process is an iterative process, as we receive Rule 9 responses, these will be analysed and, at that stage, a decision taken as to whether further and/or additional evidence is required and if so whether that should be from more Welsh-specific organisations.

The fourth point concerns what was described by Mr Jacobs on behalf of the TUC as “strand tying”, namely considering comparing and contrasting the key decision making in the four nations of the UK.

As to this, I would simply like to acknowledge that this is a matter of considerable importance. This Inquiry is uniquely placed to be able to derive information, reach conclusions and make recommendations based on the different approaches taken by the four nations of the UK. Precisely how we go about this is the subject of active consideration by the Inquiry teams for modules 2, 2A, 2B and 2C and, in the usual way, we will report progress in this regard through our monthly updates.

My Lady, those are the only points I wish to raise by way of reply submissions and that concludes everything that the advocates this morning wish to put forward.

Baroness Hallett: Thank you very much, Mr Poole.

As I said earlier, I’m very grateful to everyone for their help and for their offers of continued help in the future. We are going to need that help if we are, as I said earlier, to meet the ambitious timetable but having seen such a constructive approach adopted by all the Core Participants in their written and their oral submissions, I remain optimistic that we can conduct

both a thorough and a timely investigation of the issues

that are of significance for the people of Wales. So

thank you everybody for attending, making submissions or

indeed just watching online.

Thank you.

(12.05 pm)

(The preliminary hearing for Module 2B concluded)