Transcript of Module 2B Public Hearing on 12 March 2024.

(10.00 am)

Lady Hallett: Ms Cecil.

Ms Cecil: Indeed, good morning, may I call Minister Morgan, please.

Baroness Eluned Morgan


Questions From Counsel to the Inquiry

Ms Cecil: Your name?

Baroness Eluned Morgan: My name is Eluned Morgan.

Counsel Inquiry: Thank you, and thank you for attending today and assisting the Inquiry.

While you give your evidence today, if you could keep your voice up. If I ask you to pause or slow down it’s because there is a stenographer who is undertaking the note for the Inquiry, and also your voice needs to be clearly received by the microphone because there is a recording.

If I ask you anything that is not clear, please just ask me to repeat it or rephrase it and of course I will do so.

If I could just ask for your witness statement, please, to be pulled up on the screen for one moment.


You signed this statement on 14 December of last year. Is it true to the best of your knowledge and recollection?

Baroness Eluned Morgan: It is.

Counsel Inquiry: Thank you. I will touch today on a number of topics but you will also be aware that the Inquiry has your written statement and indeed the other documents and exhibits that you provided to the Inquiry, and that will form part of the evidence in due course.

If I may begin, firstly, by touching upon your professional background and indeed the roles you played in the pandemic.

First of all, if I may, in terms of the background, from November 2017 to December 2018 you served as Minister for Welsh Language and Lifelong Learning; is that right?

Baroness Eluned Morgan: That’s right.

Counsel Inquiry: From 2018 to October 2020 you were the Minister for International Relations and the Welsh Language. Then from October 2020 to May 2021 you were the Minister for Mental Health, Wellbeing and the Welsh Language.

You will appreciate that it is your roles in the more recent, those last two ministerial roles, that we are interested in today.

If I can begin, therefore, by looking at the January to October of 2020 period, that was when you were the Minister for International Relations and the Welsh Language.

I understand that you wish to say a few words in relation to your ministerial responsibilities with regard to the Welsh language in Welsh. Would you like to do so now, Minister?

Baroness Eluned Morgan: (Interpreted): Thank you.

Thank you for this opportunity to provide evidence for this. I know that many people are anxious to get replies to questions as a result of what all we went through, as a country, as a result of Covid.

As you heard, I changed my role during the pandemic on several occasions. In the first place I was responsible for international affairs and the Welsh language; obviously much of that portfolio closed down during the pandemic, and I spent a lot of that time at the beginning of the pandemic helping my deputy, who was responsible for culture, tourism, and of course there was nobody to take responsibility for hospitality, so I stepped into that role. I spent a lot of my time on that.

As you outlined, I spent time then from October as a minister for mental health and welfare, and then in May I took over as Minister for Health and Social Services.

I think it’s fair also to say I still – I’m still in that role. I don’t think many people who were in that role as health minister who’s still in role today. And to me the pandemic isn’t over. We hope that – over the next few days to give the 10 million of vaccinations. There are still waves of Covid affecting us in the NHS. A few weeks ago, with the latest data, there were 10 deaths as a result of Covid. That’s in the context of about 700 people per week who have died. We’re dealing with Long Covid. So there are lots of things where we’re still dealing with Covid, and that’s part of my responsibility to date.

Counsel Inquiry: What I wish to do is to take you back, if I may, to the beginning of the pandemic, and your role in Welsh Government or – decision-making.

You were a member of Welsh Cabinet; that’s correct, isn’t it?

Baroness Eluned Morgan: It is.

Counsel Inquiry: We’ve heard evidence already from Vaughan Gething that decisions taken by Cabinet were collective decisions?

Baroness Eluned Morgan: They were.

Counsel Inquiry: Indeed.

In addition to attending those Cabinet meetings, you also attended daily ministerial calls.

Baroness Eluned Morgan: Mm-hmm.

Counsel Inquiry: Those were the ones that were first instigated in early April until June of 2020. You were engaged in the group known as the Star Chamber, and indeed we’re going to be hearing more about that from Rebecca Evans, the minister for finance, later this morning. Then also the weekly core Covid-19 group that we’ve also heard a little bit of evidence in relation to.

Upon taking up your role as Minister for Health and Social Services in May of 2021, you then began to attend the weekly meetings of the Covid update group; is that correct?

Baroness Eluned Morgan: That’s correct.

Counsel Inquiry: And that was with the First Minister, the Chief Medical Officer for Wales, Dr Atherton, and Andrew Goodall?

Baroness Eluned Morgan: That’s correct.

Counsel Inquiry: We will touch upon those as we move through.

First of all, if I may, as I say, take you back to that beginning period and January to March of 2020, so the period leading up to the first national lockdown.

With regard to your awareness of Covid-19, and the first case of Covid-19 within the UK, am I right that that came to your attention on around 29 January?

Baroness Eluned Morgan: So the first case of Covid in the UK, yes.

Counsel Inquiry: Indeed. And when it came to Wales, the first case was approximately a month later, 28 February?

Baroness Eluned Morgan: That’s correct.

Counsel Inquiry: Although you were not responsible or, indeed, involved, as I understand it, in the Welsh Government’s preparedness plans, did you believe at that point, at the end of February, that it would be possible to trace and control those isolated cases, essentially containment?

Baroness Eluned Morgan: Well, I think there was – I think at the time there was an effort to do that. Whether we’d have been successful I’m not sure, but at the time there was an effort to contain it. But at that point we didn’t have any cases in Wales until 28 February.

Counsel Inquiry: Indeed.

Now, following on from 28 February, you’ve also described in your witness statement how, for you, St David’s Day, 1 March, was a key and critical time because of your role as Minister for International Relations and the Welsh Language.

So we’ve had the first case in Wales on 28 February, you then make during that period, or over that period, two international trips; is that right?

Baroness Eluned Morgan: Well, one was – took place before that first case, so from – I was out –

Counsel Inquiry: 23 February –

Baroness Eluned Morgan: 23 February. I think this was quite important, in the sense that we’d just come out of Brexit, my chief responsibility was to make sure we had very close relationships internationally, St David’s Day is a key time for us to go and beat the drum for Wales abroad, and so that was something that I carried out. So I missed the first Cabinet meeting where Covid was discussed.

Counsel Inquiry: In terms of 23 February, did you consider at that point Covid to be a real threat to either the UK or, more specifically, Wales?

Baroness Eluned Morgan: On 23 February, I don’t think I did at that point, no.

Counsel Inquiry: Indeed, and that’s where you undertook the overseas trips to Canada and the United States.

You then returned at the beginning of March, indeed St David’s Day, as I understand it, and then you made a second trip to Ireland, on 11 March.

Now, this obviously postdated that first case of Covid-19 in Wales. At that point did you again see Covid-19 as being a significant threat to either the UK or Wales specifically?

Baroness Eluned Morgan: I think even at that point we hadn’t realised quite how much of a threat it was. The Foreign and Commonwealth Office were not suggesting that people didn’t travel abroad at that time, so, again, this was a key relationship for me to go and make sure that we had very strong relationships with our Irish counterparts, our nearest neighbours, straight after Brexit.

Counsel Inquiry: And in terms of your state of knowledge with regard to Covid-19 around that period of time, so up until around 11 March, that week that followed, how well did you understand the threat to be, yourself personally?

Baroness Eluned Morgan: I think I started to understand how serious the threat was on my return from Ireland. Clearly that was the week when there was a lot of discussion about whether the rugby should go ahead, but on 11 March, you know, we were still suggesting – the rugby was still supposed to be taking place a few days subsequent to that.

Counsel Inquiry: Do you consider that the Welsh Government was slow to recognise the serious public health threat that Covid presented at that point?

Baroness Eluned Morgan: I think if we had our time again, we … we recognise that we probably should have been making earlier preparations.

Counsel Inquiry: Now turning, if I may, to the lockdown itself, you explain within your witness statement, it’s at paragraph 65, if that assists, page 16, that Covid was widespread in Wales by the middle of March of 2020, and you note that had there not been a lockdown at that point, the impact would have been – on “hospitals and public services would have been overwhelming and many more people would have died”.

Just dealing with the timing of that lockdown, firstly, do you consider that lockdown ought to have been earlier than when it was instituted and could Wales have done that in advance of the UK Government’s decision?

Baroness Eluned Morgan: Well, at the time, it was very late when we realised that the Welsh Government would have responsibility effectively for being able – for managing how we responded to the pandemic. I think there was an assumption that it would have come under civil contingencies. So I think also there has to be an awareness that in Wales lots of people get their information from the UK press, and for us to have initiated something prior to England would have been very difficult, I think.

So, in retrospect, I think there’s an agreement across the United Kingdom that, given our time again, we would have gone into lockdown slightly earlier.

Counsel Inquiry: Thank you.

Just dealing with the assumption that you refer to in relation to the Civil Contingencies Act, were there any attempts by you or the Welsh Government to ascertain how the pandemic would be dealt with in terms of a lockdown or the use of NPIs, and whether it would indeed be through the Civil Contingencies Act or Wales utilising its own devolved powers?

Baroness Eluned Morgan: Well, I think that was very much more in the space of the health minister’s responsibility at the time, so that was not something that I became involved with.

Lady Hallett: When you say given your time again, could have locked down slightly earlier, do you want to give any timing on it? Some people have talked about a week earlier, some two weeks earlier. Are you talking about days earlier?

Baroness Eluned Morgan: I think it’s very difficult without the data. Obviously with the benefit of hindsight I think in all cases there were opportun – there … we would have – we would have done something perhaps a week earlier.

Lady Hallett: Thank you.

Ms Cecil: Moving through March, if I can bring up, please, a WhatsApp message that you sent in the Welsh ministerial WhatsApp group, what you have to say there is in relation to the position in Wales, and you’ve explained that Covid-19 was fairly widespread at this stage, and we see that the message is dated on 21 March and you’re sending a message saying:

“We really need to stop people from coming to Wales on holidays. Two bus loads of pensioners arrived in St Davids on Friday.”

Firstly, obviously, you were expressing some level of concern in relation to presumably tourists visiting; is that right?

Baroness Eluned Morgan: Mm-hm.

Counsel Inquiry: The following day, on 22 March, you sent a further message, this time to the First Minister, reading:

“Mark …”

It’s INQ000376650.

“Mark, Tenby is full of visitors and the Daily Mail is recommending the Welsh wilderness as a place to escape. I have been asking for a statement on this since Thursday. Please can we discourage people from coming.”

You explain the health board is very – “extremely concerned” about that.

We then see the reply which explain:

“We are meeting later today to receive reports from local authorities and health boards, and to get legal advice on powers available to us to act.

“Of course we are discouraging people from travelling, as we have been since the start. We will issue advice to caravan park owners, as fast as possible. Thereafter, or ability to do more than advise and Discourage depends entirely on our legal powers to do so.”

It continues – I’m afraid it’s cut off on this one, but it continues, just so that we have the complete picture, to say:

“We will know more about that by the end of the day. I will be talking to Nicola Sturgeon about the approach they are taking in Scotland. Thanks, Mark.”

Two questions, if I may, that arise or two issues that arise from that.

The first relates to the response by the First Minister. To place this in context for you, on 20 March the First Minister had used devolved powers to close restaurants, bars and cinemas, but with what we see here is a further reference to getting legal advice on the powers available to act.

At this point, is it the position that the Welsh Government were not clear whether they had the legal power to prevent people travelling into Wales?

Baroness Eluned Morgan: Well, that’s certainly what the text suggests. I think it’s probably worth emphasising on 16 March there had already been a requirement for people to not undertake unnecessary travel, and what was clear is that people were not adhering to that. I think I was supersensitive to this, because I live in St Davids in Pembrokeshire, where there’s a huge number of visitors, and they were still streaming in at that point, which is why it was something that I was particularly keen to look at.

But yes, in relation to the legal powers, the text from the First Minister suggests that we were still looking for our ability to enforce it. We – it’s not just about being able to make a statement, it’s about our ability to make sure that people actually follow through on what we’ve asked them to do.

Counsel Inquiry: Firstly, it’s unclear what legal powers were available to stop it and, secondly, what legal powers were, therefore, available to enforce it. So at that point the Welsh Government were not clear as to either set of those powers; is that – that’s a summary of what you’ve just explained –

Baroness Eluned Morgan: That seems to be the suggestion from the text.

Counsel Inquiry: The second matter that really arises from that is that you are making it plain that you’ve been calling for a statement to be put out to try to stop people coming, and that statement you had been requesting since at least Thursday 19 March, a few days prior.

Firstly, in relation to that, do you think that firstly getting that message out even on 19 March was too late?

Baroness Eluned Morgan: Well, there had already been a requirement for people to not undertake unnecessary travel from 16 March, so this was reinforcing a statement that had already been made.

Counsel Inquiry: But just dealing with that secondly, did you have concerns that your concerns were not being acted upon? In short, that you had requested a statement and yet that still had not been undertaken, given everything you were seeing about people flooding into your – even into the area that you lived?

Baroness Eluned Morgan: I was really aware that, by this time, the Welsh Government was in full swing in terms of trying to mitigate against some of the worst effects that may be coming our way, and so I think they were firing on all cylinders. This might have been one of those areas where work had already – you know, the announcement had been made. It was reinforcing an announcement that I was looking for.

Counsel Inquiry: But obviously it’s a message that you are sending saying “I have been asking for a statement on this since Thursday”. It was something that you considered to be of fairly significant importance. Do you consider the First Minister was taking it as seriously as you were at that point?

Baroness Eluned Morgan: I think the First Minister was taking it seriously, but I think he had a huge number of other issues that he had to consider at the same time.

Counsel Inquiry: Thank you.

I now want to ask you about international relations and communications that you had within your role as minister for international relations, again around this time.

To place it in context, you attended the UK governmental ministerial international Covid response meetings. Those were chaired by the foreign and Commonwealth minister at the time. How regular were those meetings?

Baroness Eluned Morgan: They weren’t very regular, they were quite sporadic, they – we didn’t have much warning in terms of paperwork. Quite often there wasn’t even a very clear agenda. I did get a sense that they were just responding almost to some of the questions coming up.

There was a lot of work initially in relation to repatriation of citizens who were stuck abroad. There was some general talk about vaccination and, when that would be developed, whether it would be available to developing countries.

I kept on asking for information from them to see if we could learn from other countries in terms of what they were doing and what lessons we could learn. That wasn’t forthcoming, so I commissioned work from our own international offices to – for them to undertake some work to see what we could learn from what countries had done abroad, in particular later on when it came to re-opening after – after the end of lockdown.

Counsel Inquiry: Thank you. Just picking up on what you’ve explained there, do you know why the information you requested was not forthcoming from the FCO at that point?

Baroness Eluned Morgan: I don’t know why it wasn’t forthcoming, no.

Lady Hallett: Was it necessarily the right source? I’m wondering whether – would it have been the FCDO or would it have been scientists working in a different group? I’m just wondering whether it was the right …

Baroness Eluned Morgan: It might have been, but it was the only forum I had access to, so why wouldn’t I ask the question within that forum.

Lady Hallett: I understand. Yes.

Baroness Eluned Morgan: So I think it would have been up – should have been up to the FCO then to go and ask the scientists. Our scientists also, later on, did some of that international work as well, but I guess right at the beginning of the pandemic, you know, the international relations portfolio was clearly not an area – and it’s a reserved area, so already, you know, there are limitations on how much we can do within that – that portfolio.

So I was – I was looking for work. I was looking for ways to contribute to what I knew to be a very serious situation. I thought this may be a way that I could contribute through the networks that I had on my availability.

Ms Cecil: Indeed, you do mention also within your statement that you were not always sighted on all available information at UK level in relation to these meetings, you also refer to PPE procurement and distribution. Other evidence that the Inquiry has heard indicates that DHSC, the Department of Health and Social Care, was fairly involved within that role instead of the FCDO. Was that something that you were aware of, or was there a lack of clarity over which departments were dealing with which issues?

Baroness Eluned Morgan: I think there was an understanding that that was being led from a different department. The opportunity was for the FCO and for us, in our international offices, to try and do some work within those nations to try to identify if we could get some protective equipment directly from them. If we found sources, then we suggested that they went via our Life Sciences Hub, so that was a very clear method for them to – for the Welsh Government to procure.

Counsel Inquiry: Just dealing then and picking back up on the advice that you commissioned, with regard to that, firstly, was it effective? Was it productive? Did you receive useful information from overseas? And to follow up on that, so that you understand why I’m asking you the question, how did that information then inform Welsh Government decision-making?

Baroness Eluned Morgan: I think it – I think it was found to be useful. I distributed it to my colleagues across the Cabinet, so that they had it directly, but also I shared it with the Chief Medical Officer. I think one of the areas where it proved particularly useful was in relation to education and how we’d re-open education settings and how learn from how other countries had fared in that area.

Counsel Inquiry: Thank you.

Again, just picking up with regard to international approaches, the Inquiry has heard from Dr Roland Salmon in relation to advocating for an approach that more closely resembled the Swedish response to the pandemic. Is that a matter that at that point you considered, or at any point during the pandemic?

Baroness Eluned Morgan: It wasn’t a serious consideration by the Welsh Government. I can’t remember us having a conversation around the Swedish model, and we don’t have any offices in Sweden, so we wouldn’t have had any evidence from there. But what we did do, what I did do, was to try to follow up with some of the areas where we have much closer relationships, so, for example, Brittany, conversations with Brittany authorities about how they were planning to open up in relation to tourism, Catalonia, they were telling us about how they were using technology in relation to contact tracing, the Basque Country, New Zealand, so I was trying to do some bilaterals to learn also directly from people, my counterparts in those countries.

Counsel Inquiry: With regard to those bilaterals, those were with countries that Wales had an established relationship with; is that right?

Baroness Eluned Morgan: That’s right.

Counsel Inquiry: And you’ve mentioned Brittany, Catalonia, the Basque Country, and there’s a common link with language?

Baroness Eluned Morgan: Yeah.

Counsel Inquiry: Overall, what learning did you take away from other countries’ experiences in terms of the easing of the lockdown measures that you’ve already touched upon, and education?

Baroness Eluned Morgan: Well, I think there was some learning around things like ventilation, face coverings. There –

Counsel Inquiry: I’ll just pause you there for one moment. Ventilation, do you mean ventilation of buildings as opposed to medical treatment?

Baroness Eluned Morgan: Ventilation in terms of buildings, yes, school buildings, yes.

Counsel Inquiry: Sorry, face coverings, and were there any other areas?

Baroness Eluned Morgan: Those are the areas that really stood out to me as areas where I think it was fed into the education department.

Counsel Inquiry: If I may now turn to government decision-making and the role of medical and scientific advice, please. A theme throughout your witness statement relates to the limitations available – of the data and evidence available to you in the Welsh Government and how that then impacted on the decision-making that you undertook.

If I can bring up, please, paragraph 6, please, of your statement. It’s at page 2. You explain there, approximately halfway down, that:

“The Welsh Government’s leadership was deliberately cautious in its response … in particular where there were recognised limitations in the scientific advice and data … particularly the case when it came to making decisions about easing lockdown restrictions, and that seemed to be a tone which was in keeping and chimed with the majority of people in Wales.”

You continue to explain that often decision-taking was made “without always having as definitive or comprehensive evidence base that, in an ideal world, [you] would have liked”. So in relation to decision-making, when you say it was “deliberately cautious”, do you mean in retaining restrictions for longer?

Baroness Eluned Morgan: Before every meeting when we were discussing in the 21-day reviews, we were reminded by the First Minister of the limitations of the legal powers that we had, and one of those is that we should act proportionately, and so we were very aware of that.

I think just in relation to being deliberately cautious, I think if the evidence wasn’t as clear as we’d like, we would err on the side of caution, and I think we were aware that the scientists generally were just one step ahead of us on the information that we were being given.

Counsel Inquiry: Thank you.

Just comparatively, the Inquiry has heard evidence that the general pattern in relation to the easing of restrictions, which is what we’re discussing, was that England and Northern Ireland would ease restrictions and they re-opened the economy first, followed by Scotland and then Wales. Is that right?

Baroness Eluned Morgan: That’s my understanding. I don’t think any of it was deliberate, in terms of us comparing ourselves with others. We were trying to do what was right for Wales. And that cautious approach seemed to chime with the people of Wales as well.

Counsel Inquiry: Indeed. And that follows – that perhaps answers my next question to some extent, which is why you think it was that it followed that pattern generally. You’ve explained that you were taking, as far as you were concerned and the Welsh Government, decisions that were right for Wales, but more generally why do you think that that followed that pattern, that Wales would typically be the last one to re-open or ease those restrictions?

Baroness Eluned Morgan: I don’t think it was a deliberate decision to do it in comparison to any other countries. We were doing what was right for our nation. We were looking at the data, looking at the evidence, looking at the spread, looking at the ability of the NHS to cope, so those were the things that were determining our – our decision-making.

And it wasn’t just about that, we were also trying to make sure that we had a balanced approach. We knew that lockdown was affecting people emotionally, economically, physically, and so we – we had to balance the public health requirements with all of those other requirements.

Counsel Inquiry: With regard to the Cabinet decision-making, a large number of those papers clearly demonstrate that data, scientific data and modelling formed a substantial part of those discussions, and indeed was given considerable weight when it came to making the decisions in relation to the NPIs and relaxation.

Picking up on the point of balance, do you consider that other harms, such as the ones you’ve just identified, from non-Covid related illness, another one, and socioeconomic and other societal harms, were also afforded equal weight or given proper consideration when making those decisions about NPIs?

Baroness Eluned Morgan: I think we did try to make those decisions in the round, but I think there was also an understanding that if you didn’t bring Covid under control, then it would have an impact on the economy. So we didn’t – we thought that the link was very strong of one with another. So we – I think, in terms of the balance, we were very aware that the public health requirements was something that we should consider, on balance, probably very seriously, compared to some of the other areas that we were also concerned about, like the emotional wellbeing, the economic wellbeing of the nation.

Counsel Inquiry: You were clearly receiving a significant amount of scientific advice and datasets. Do you consider that you were equally served with respect to inputs in relation to those other societal harms? Were you receiving similar like advice?

Baroness Eluned Morgan: I think we were. I mean, just if you look at the scientific advice, we had – the Technical Advisory Cell were giving us very comprehensive information, perhaps 20 pages, before every 21-day reviews, we had the KAS information, we had the information, a statement from the Chief Medical Officer, prior to every 21-day review. We had the SAIL database, which was giving us that modelling that tried to project what would happen in future. The NHS also told us what the situation was. But then on top of that, we did have feedback in terms of, you know, the impact assessments, we had equality impact assessments, we had extensive conversations with our social partners and with economic partners as well.

So it wasn’t just one aspect that we were looking at; we had evidence from all of those. And one of the things that we did very carefully and very seriously was to have really comprehensive discussions with our stakeholders before we implemented any changes.

So, you know, they made it very clear to us, particularly in my dealings, for example, in relation to opening hospitality, you know, how difficult it was for us, for them, and how practically we could open whilst – whilst protecting people and trying to mitigate the possibilities for the virus to spread.

Counsel Inquiry: Thank you.

I want to move now, if I may, to the use of wastewater sampling, wastewater sampling having been used throughout the pandemic in Wales as one of the primary surveillance methods in relation to tracking the virus; is that right?

Baroness Eluned Morgan: That’s right.

Counsel Inquiry: Again, that was a scheme that was led by Bangor University, it had Welsh Government funding, included Cardiff University, Public Health Wales and Welsh Water.

Can you just briefly explain how wastewater sampling was used by the Welsh Government in its decision-making in relation to NPIs.

Baroness Eluned Morgan: So there are about 48 places where samples were taken from waste water, and that gave us insight into about 80% of the population of Wales, so we got a really good coverage. And the real benefit of this is that it didn’t depend on how much testing was happening within the communities.

What was interesting initially, because this was quite a new science, was actually comparing it with the ONS data, and it did seem to track the ONS data, but the difference was that actually this was very much real time, but also gave us an insight into what kind of variants were circulating in Wales. So we had early sight of when Omicron had hit, but it wasn’t just about Omicron, we can see lots of other things within that waste water.

It was helpful, I think, more than anything, in giving us the confidence of when we could relax some of the – some of the restrictions, because we could note where, across the whole of Wales, the virus was at its peak. So we knew it was coming down so we could relax with a bit more confidence.

Counsel Inquiry: So you could monitor the decrease, effectively, through the wastewater sampling –

Baroness Eluned Morgan: Exactly.

Counsel Inquiry: – localised sampling also gave you some insight into the regional variations and indeed, as you say, the various different variants?

Baroness Eluned Morgan: Absolutely. So, you know, just to give you an example, later on when the Omicron variants hit, you know, there was a huge peak in terms of the number of cases but it came down very, very quickly which meant that we were able to relax some of the conditions around – during that time, because we were confident because we had the readings from the waste water.

Counsel Inquiry: Indeed.

Then plainly it was something – a very useful tool, and valuable tool in your view. It’s the Inquiry’s understanding that the scheme was ended last August, and so no longer continues. Is that correct?

Baroness Eluned Morgan: So this was really difficult for us. We are massively challenged financially in relation to the two NHS budgets, and we’ve had to make some really, really difficult decisions. You know, this is not a cheap way of monitoring, so – I think we’d spent about £5 million on it – so, with real reluctance, we did switch that off. But then actually we were concerned at the beginning of December that there may be a new variant, and I was really concerned that we didn’t have the kind of monitoring, so we’ve actually switched it back on now, but obviously not with quite the same ability to monitor as we did before because we haven’t put as much investment into it.

But I just think it’s quite – it’s worth remembering that even the tools that we have, that we found really useful, have to be balanced against the day-to-day activity that we have to provide to the public of Wales in terms of serving them and the NHS.

Counsel Inquiry: So at the moment it is currently operating –

Baroness Eluned Morgan: It is –

Counsel Inquiry: – limited degree, is that –

Baroness Eluned Morgan: It is, exactly.

Counsel Inquiry: Following on from that, is it ready and available, therefore, to be stood up in the event of a future pandemic?

Baroness Eluned Morgan: We could do that, but obviously there’s a danger, because you need to make sure that you’ve got the scientists, and once you lose the scientists, then obviously that’s more difficult to switch on. But there is now a clear skeleton system that we can build up.

Counsel Inquiry: And potential standing capacity?

Baroness Eluned Morgan: That’s right.

Counsel Inquiry: Just if I may now turn to the Welsh language.

And I appreciate again, Chair, this is a position whereby we may switch to the Welsh language. So could I ask that everybody utilises their headphones that needs to.

Just in relation, please, to the impact upon the Welsh language, the Culture, Welsh Language and Communications Committee considered the impact of Covid-19 on those speaking the Welsh language, there’s a report that was published in December of 2020.

And that can be found at INQ000066501.

But in short, the report made six recommendations.

The need to reinstate budgets for support in promoting the Welsh language, because of reallocation during the response.

The need to promote the Welsh language in the post-pandemic economic recovery plan.

And the need to update the digital Welsh language strategy.

Just focusing on those three for a moment, have those recommendations been implemented?

Baroness Eluned Morgan: Sorry, I …

(Interpreted): I’ll just change to Welsh. I will answer in Welsh. Is that okay? I will answer this in Welsh.

Obviously the money has gone back to the budgets, certainly in terms of technology, we are very aware that working with technology has become an exceptionally important part of all our lives, and it’s incredibly important to understand how that can help us with the language, and one of the elements that became apparent within the Covid was millions of people were try – starting learning the Welsh language online, which was something quite novel really. And those recommendations have been taken seriously.

Can I also say on a more general point relating to the Welsh language, about 440,000 people speak Welsh, 440,000, sorry, so 17% of the population. So we’ve got our – we’re very keen to get a million speakers by 2050, and one of our concerns …

(In English): I was going to go on to say how Covid had impacted the Welsh language, but that’s fine.

Counsel Inquiry: Indeed, you set out in any event within your witness statement the impact of it, but more broadly the report sets it out in some detail, including those recommendations, and my focus was, as a consequence, predominantly on those recommendations, to see what had actually been undertaken.

If I may then move to the period of October 2020 to May of 2021, on 9 October you were appointed to a newly created ministerial position, and that was for mental health, wellbeing and the Welsh language. That was, as I understand it, specifically created to allow Vaughan Gething, in his role as Minister for Health and Social Services, to focus on pandemic issues, NHS delivery and performance.

Was the ministerial post created directly as a result of the pandemic and concerns in relation to mental health and wellbeing, or was it a post that had already been considered prior to the pandemic?

Baroness Eluned Morgan: That’s a question that you’ll have to make to the First Minister who has responsibility for organising how portfolios are determined.

Counsel Inquiry: Thank you.

Given that it was a newly created post with regard to mental health, do you consider, looking back over the period that – in the run-up to October 2020, so January 2020 to October of 2020, that mental health may not have been given enough focus by the Welsh Government over that period?

Baroness Eluned Morgan: No, I don’t accept that. I think that the – well, I know that mental health was always considered an essential service, we take mental health very seriously in Wales, we have a ringfenced allocation for it. But there were concerns that fewer people were being directed to mental health services, we saw that there were more self-referrals. And we very aware that there were people who were struggling, there were people who were dealing with bereavement, there were people who were dealing with financial challenges, and all of these things were having an impact on people’s mental health. We were particularly concerned about young people and a survey was carried out. I think in late October, which suggested that 50% of the people of Wales were concerned about their mental health, and that, when it came to young people, three-quarters of people between the age of 18 and 25 were concerned about their mental health. So it was an issue that we wanted to take very seriously.

We – just before I was appointed, there was a refresh of the Together for Mental Health strategy, which deliberately targeted some additional resources towards supporting people’s mental health, particularly telling people about the CALL Mental Health Helpline, making sure that we gave more resources to the tier 0 and tier 1, which is the kind of third sector support that can be given, making sure that we had cognitive behavioural therapy online, and also reaching out to those communities that perhaps had not reached out for mental health support, including, for example, people from the black, Asian and minority ethnic communities.

Schools were also really important to us, so we increased the funding available for mental health in schools. So there were a huge number of areas where we were concerned. And also we were concerned about the mental health of people on the frontline in our health and care services. So we put an extra – we put £1 million into support for them and also for school teachers.

Lady Hallett: You mentioned the mental health of those suffering from bereavement. Was there any specific bereavement support?

Baroness Eluned Morgan: There is a specific bereavement support available for – for people within Wales. If they contacted the CALL Mental Health Helpline, then they would have been directed.

Lady Hallett: During the pandemic?

Baroness Eluned Morgan: Yes.

Lady Hallett: So it wasn’t specific to bereavement, it was: if you’re suffering from bereavement, it’s affecting your mental health, then you have to go to the mental health hotline?

Baroness Eluned Morgan: Yes.

Ms Cecil: Was it advertised or flagged as being bereavement support or was it simply mental health support?

Baroness Eluned Morgan: I think it was more mental health support, and I made a point if I ever did the briefings to make sure that everybody had access to the number. So we did make a real effort to try to make sure that people had access to the number.

Lady Hallett: It’s just that a lot of bereaved wouldn’t consider that if they’re going through grief – and the grief during the pandemic, as I’m sure you’ll appreciate, was exacerbated by the circumstances – they wouldn’t consider they were mental health issues, therefore they may not think about contacting a mental health line. They had specific bereavement problems that needed support.

Baroness Eluned Morgan: Yeah.

Lady Hallett: Do you accept that?

Baroness Eluned Morgan: I accept that, yes.

Ms Cecil: I now want to turn, if I may, to later in the year in terms of the firebreak. So I’m looking at the autumn period, in short, of 2020, and then the second lockdown.

With regard, firstly, to the timing, do you consider that the firebreak was timely or ought that to have been instituted earlier?

Baroness Eluned Morgan: I think we were still trying to work out whether the local restrictions were effective. There were parts of Wales where actually the virus wasn’t very strong at the time, so we had to work out at what point the firebreak should be instigated because there were parts of Wales where the rates were very low, and at all times we had to act proportionately, so I think that was something for us to consider as well.

Counsel Inquiry: There has been evidence of scientific and medical advice from both the CMO and the CSA, so Dr Atherton, Dr Orford, that ultimately NPIs action should have been taken sooner and for longer, and indeed, in relation to the local health protection areas, the First Minister has described those, such as in Llanelli, as a failed experiment. Do you agree with that?

Baroness Eluned Morgan: Well, they clearly didn’t work, which was why we needed to go into a firebreak. So I think we were all learning at this point, they were still very much a tool that was being used in England. We had our first, kind of, local lockdown in Caerphilly on 8 September and we were still putting – starting to put some local authorities in at the start of October, so we were still putting them in in October.

So it’s difficult to say, if we’d have gone earlier, we hadn’t actually tested them out much prior to that event, and by 15 October we had an agreement in principle to go into a firebreak.

Counsel Inquiry: Now, in relation to looking at the rest of the UK and the NPIs that were being undertaken at that point, were you aware that in relation to the localised tier system that was in place across England, that the scientific advice was that those measures would simply not be enough? Were you aware of that?

Baroness Eluned Morgan: I was aware of that on 15 October when we had the discussion in Cabinet. I don’t think I was aware before that, because I remember very clearly that I think we were told that Sir Patrick Vallance had suggested that that should be what we were doing. I don’t think I’d heard it prior to that.

Counsel Inquiry: When you say that Sir Patrick Vallance had suggested that that was what you should have been doing, what measures are you referring to?

Baroness Eluned Morgan: To the introduction of a firebreak.

Counsel Inquiry: Firebreak. That was the first time that you were aware of that advice?

Baroness Eluned Morgan: I think that was the first time I was aware of that advice.

Counsel Inquiry: Looking back now, do you consider that different decisions should have been taken throughout September and October of 2020?

Baroness Eluned Morgan: At the time, I think us going into a firebreak before England was quite a brave decision. We were still not sure whether the Welsh public would follow us. This – you know, going into a lockdown at the same time, on 23 March, we went in together. We came out more slowly. Would they follow us, going into winter, a difficult time, into another lockdown? And obviously we were really concerned about the financial ability – of the firepower of the Welsh Government at the time to be able to sustain a lockdown for as long as was necessary. And I think the scientists were suggesting that we should be doing it for three weeks and I think we didn’t have the economic power to maintain a three-week firebreak.

And, you know, it was really disappointing that the UK Government did not – was not forthcoming in terms of financial support. And then two weeks later, when they wanted to go into a firebreak, they suddenly announced a very different approach. And I think that was a very difficult time for us as a nation, because there were – I think people felt like we were second-class citizens in the context of the UK Government. What was suitable for them was not suitable for us two weeks earlier, and I think that was a huge disappointment to us.

Lady Hallett: I think I need to point out there is another side to that debate. I have heard evidence that suggests the UK Government weren’t taking that approach, but I think I’ll just put that on record at this stage.

Ms Cecil: Indeed.

Then of course there is other evidence before the Inquiry.

May I also just touch upon some aspects within your witness statement, because you suggest in your witness statement that actually a big factor in limiting the firebreak to two weeks as opposed to three was actually not financial but was to balance the harms of not locking down against the harms of locking down, effectively with one eye, for example, on people’s mental health and other implications and repercussions.

So with regard to that aspect, was that a primary factor, as far as you were concerned, in limiting it to two weeks as opposed to three weeks?

Baroness Eluned Morgan: I think what was more important for me is that we were very clear that it would be a short period of time. So I was very concerned about people’s mental health, going into a cold, dark winter, so locking down then was very different from locking down going into spring. So for me the most important factor was to manage expectations, whether that was around two weeks or three weeks.

I think it was more the economic argument and concerns that led us to have the two-week restriction rather than three weeks.

Counsel Inquiry: Just dealing, if I may, with the timing of that decision, a firebreak was agreed to in principle by Cabinet on 15 October, due to start and commence on 23 October, but that in-principle decision was not formally approved until 19 October, so effectively it took those four days to actually make that decision into a formal decision.

Am I right that the delay there was because you say there was insufficient information to make a fully informed decision at that point, that you wanted further advice on risks of transmission from schoolchildren?

Baroness Eluned Morgan: Yep, so that was a consideration. We wanted to be clear whether there was a greater risk of having children in unregulated environments, where they’d be mixing, rather than a regulated environment, in relation to being in school. So we wanted further advice on that, and that advice was forthcoming. So I think – 15 October was a Thursday, and clearly people must have worked very hard over the weekend to give us that advice, which was given to us on the following Monday.

Counsel Inquiry: But overall, given that advice had been received as early as mid-September that a circuit-breaker was needed and would be most effectively implemented early and deeply – and I’m sure you’ve heard more broadly the evidence in relation to interventions being early, deeper, harder – do you consider the delay in implementing a circuit-breaker in Wales to be justified?

Baroness Eluned Morgan: I do think that we can justify the circuit-breaker in Wales.

Counsel Inquiry: The delay. Not the circuit-breaker but the delay –

Baroness Eluned Morgan: The delay –

Counsel Inquiry: Taking it from the initial advice, in mid-September, all the way through until 23 October?

Baroness Eluned Morgan: One of the considerations was about the half term holiday and whether that would help or hinder the spread of the virus, so that was the area that we wanted more advice on, which is why I think there was a greater delay.

Counsel Inquiry: Is your evidence, therefore, that the delay is justified by the need for further advice, as opposed to being in receipt of that scientific advice, as I say, in mid-September?

Baroness Eluned Morgan: In retrospect, we probably should have gone a week earlier and should have gone for longer, but there were reasons why that wasn’t the case.

Counsel Inquiry: Now if I may turn to slightly later in the chronology and look at Omicron, and bring us back into summer of 2021 into winter of 2021.

Can I ask for [INQ000388561], please.

This is in relation to 14 July 2021. This is a few months after you became the Minister for Health and Social Services. There is a Covid-O meeting about relaxing inbound border health measures for vaccinated travellers and that same day we see you texting Ms Jenkins and saying:

“On covid O. We are all fucked!!”

What prompted that text?

Baroness Eluned Morgan: Can I first apologise for my fruity language, I don’t think that’s going to go down very well with my husband, who’s a priest. And being a vicar’s daughter, that’s probably not what you want to see.

But this was quite early on after my appointment, so on this particular Covid-O, there were some very interesting discussions, there was a suggestion that we should be opening up our borders to travellers coming from France and the introduction of a pilot programme where we would recognise vaccination certificates from France and allow travel to recommence. But on the same day there was a discussion in a different Covid-O about whether France should be put onto the red list. So I just found that a massive contradiction and very, very worrying.

There was also the issue about whether we should allow visitors to come from the United States and whether we should recognise their vaccination certificates. I think they had a certificate called the CDC, and it was made very clear on Covid-O that there was real opportunity for fraud in relation to the use of the CDC. So, again, that was something that concerned me.

The third thing was that there was a very clear concern on that meeting that the Border Force services were not ready for the kind of ramp-up so there was no operational problems.

So I think that was the context in which I was making that very fruity remark.

Counsel Inquiry: Thank you.

I’m now going to go into winter, and that’s when, of course, Omicron first emerged. We don’t need to turn to it, but the First Minister for Wales and the First Minister for Scotland wrote a joint letter to the Prime Minister on 29 November in relation to the risks posed by Omicron.

On 27 November, which was also the date incidentally when the first variant of Omicron was identified in the UK, you sent a WhatsApp message to the Northern Irish minister for health, Robin Swann – if I can call that up, please – at INQ000331060, stating:

“We are doomed!”

Then we see a response of:

“mix of that [we’re doomed] and ‘don’t panic’.”

Do you recall what that was in relation to? Was that Omicron?

Baroness Eluned Morgan: That was absolutely Omicron. So the first case we’d heard of had been identified in South Africa on 22 November, the first case in the United Kingdom was on 27 November. What we did know is that this was a variant that transmitted very quickly and I was really concerned at this point that we would see some quite considerable peaks as a result of Omicron entering our country.

Counsel Inquiry: You explain that you were very concerned. Was there at that point a fatalistic mindset within the Welsh Government that there was going to be a future wave and more restrictions were necessary, rather than waiting to see what the evidence was or scientific advice was as it unfolded?

Baroness Eluned Morgan: We – there was no fatalism at all. We got onto a very serious footing. We held, I think, four or five Cabinet meetings within a week. We – first of all, we put ten countries on the red list, which meant that they had to go into quarantine, they had to take a test on day 2 and day 8, we brought forward the booster campaign, and we agreed to look at the regulations on a weekly basis because we were so concerned about the changes.

And you referred there to a request by the First Minister to ask for a COBR meeting from – with the UK Government, that I don’t think happened till later.

Counsel Inquiry: If it assists, the COBR took place subsequently, on 10 December.

Baroness Eluned Morgan: Later, later.

Counsel Inquiry: Yeah. And the letter was on 29 November.

You refer in your statement to there being various information gaps at that point in relation to Omicron, including the efficacy of vaccinations, so whether the vaccine would work, and other matters, including the severity, essentially, of the variant.

What decisions do you consider would have been made differently had there not been those information gaps there?

Baroness Eluned Morgan: So we didn’t know about the efficacy of the vaccine and we didn’t know how long the protection was in the people who were vaccinated, so waning, we were very worried about waning, in particular amongst the most vulnerable. So we – as I say, what we did is to bring forward the booster vaccination.

Sorry, did I answer your question properly?

Counsel Inquiry: My question was: which decisions would you have made differently?

Baroness Eluned Morgan: I don’t think we would have made many differently. I think you can see from the evidence that I put forward that there was a very concentrated increase in terms of the drumbeat of tightening up the restrictions, so, for example, we made it a legal requirement for people to be able to work from home, we put more guidance in place around what kind of face coverings should be worn. We already had Covid passes that were necessary to go into cinemas and theatres and nightclubs. We encouraged people to use lateral flow tests. So there were a whole series of things that we tightened up ready for what we knew was going to be quite a challenging time.

Counsel Inquiry: If I may ask you, please, about nightclubs, one of the matters that you’ve just mentioned.

And if I could take you to INQ000376661.

You explain about tightening up various restrictions and the Covid passes. Nightclubs were forced to close from 27 December. You’ll appreciate that’s probably one of their busiest times of year, it’s the New Year period.

I just want to deal with your text message here, please, if I may, you say:

“Mark, I am concerned that if we keep nightclubs open we lose our moral authority to ask people to limit contacts. I was hoping that the papers might have given that as an option.”

So was the decision in relation to nightclubs one based essentially on moral authority or perception as opposed to dealing with the scientific advice or evidence in relation to the risks that were posed in such environments, through use of the Covid passes, for example?

Baroness Eluned Morgan: No, I mean, we’d had TAC advice previously, in the previous July, that set out some of the risks around nightclubs, that they were areas where there was a potential for greater spread of the disease, because of loud music and singing – we like to sing in Wales, as you know – the closer interaction, the humidity, the lack of ventilation potentially. So there were all of these things that made them vectors for further transmission. So, you know, I always had a concern around these.

We’d obviously introduced the vaccine certificate on 11 October, so those were already in place, but because we didn’t know at the time whether the vaccines would be effective, then I was really concerned about what the impact might be if we allowed people to gather in great numbers.

Counsel Inquiry: But being clear about this, obviously that was advice from July; by this point, as you’ve explained, you had the vaccination, the Covid passes in place and in play. Your message very clearly speaks about moral authority and limiting of contacts as opposed to any risk. So I’m asking: was that the primary issue for you at that stage, in relation to nightclubs?

Baroness Eluned Morgan: No, I don’t think it was all about moral authority, although I think that it was difficult to ask people to limit their contacts if you were still allowing people to gather in significant numbers.

But there were difficulties around nightclubs. One of them was an issue around the definition, what is a nightclub, because you can have pubs where people can dance and whether that is a nightclub. We were really concerned also about the border issues. So in Cardiff, for example, you’re very close to Bristol, so there was a possibility that people would cross the border. And there’s also the issue of whether you would displace activity into unregulated house parties.

So these were all things that we had to balance in terms of risks. It wasn’t a one-way risk either.

Counsel Inquiry: Thank you.

I now want to move to the topic of four nations engagement, if I may, and informal communications.

In summary, you’re complimentary within your witness statement of both health secretaries, Matt Hancock and Sajid Javid, in relation to your interactions with them and communications; is that right, you found them to be productive, fruitful relationships?

Baroness Eluned Morgan: I certainly did, yes.

Counsel Inquiry: You explain that you were a member of two WhatsApp groups with the various ministers, the first with Matt Hancock and the other four nations health ministers, and then the second with Sajid Javid.

You do not have either of those chats any more. Why is that?

Baroness Eluned Morgan: Those have been deleted, but I do understand that you have got copies of those from other people, so those are available to you. And you’ll see from them that there’s nothing in them that I would consider to be problematic.

Counsel Inquiry: No, my questions are really focused on the failure to retain potentially relevant information that goes to issues of –

Baroness Eluned Morgan: Sure.

Counsel Inquiry: – governmental decision-making.

Baroness Eluned Morgan: Yeah.

Counsel Inquiry: Would you accept that that failure is a shortcoming?

Baroness Eluned Morgan: I think in terms of decision-making, I can give you an assurance that no decisions were made on WhatsApps. But obviously, you know, I have provided the Inquiry with reams of WhatsApp messages and hundreds of pages of notes, so in terms of transparency, I think, you know, I’ve been almost as transparent as I can be.

I’m sad that I wasn’t – that I don’t have those, but, as I say, you do have the evidence from other people, so you can see what I said.

Counsel Inquiry: Now, Matt Hancock resigned in June 2021 and was replaced by Sajid Javid as the health minister. From 11 December you created a new group for health ministers, with Sajid Javid, inviting him to join. You sent him a message saying “we thought we should set up a new one without Matt Hancock on it!!!”

Does that mean that Matt Hancock was still within your communications, with the –

Baroness Eluned Morgan: I don’t think –

Counsel Inquiry: – earlier group?

Baroness Eluned Morgan: I don’t think so, I think we probably – no, I don’t think we – I can’t remember that we communicated a lot during that time. So the reason for setting one up was because we knew we were heading into difficult territory with Omicron.

Counsel Inquiry: Okay.

Dealing then also with other methods and other communication, indeed record-keeping, as you’ve explained you provided various documents to the Inquiry including a notebook. I’d just like to ask you about two of those entries, if I may, please.

It’s INQ000327594, page 8.

And on this page we see, on page 8 of the notebook, and we see two entries, here we are:

“Is Matt Hancock hopeless?”


“Prime Minister … chaos.”

Doing the best that we can in relation to the dates and looking at the material around it, on 16 June 2021 Dominic Cummings published various text messages between him and the then Prime Minister, Boris Johnson, in which Boris Johnson referred to Hancock as “totally fucking hopeless”, and in addition he also criticised the Prime Minister, this is Dominic Cummings, for chronic dysfunction, Number 10 lies, and so on and so forth.

In relation to your question, “Is Matt Hancock hopeless?”, firstly, is that a reference to that Dominic Cummings material?

Baroness Eluned Morgan: I’m guessing it must have been. I can’t remember, but I’m guessing it must have been, and it would make sense in terms of the timing. But I used these notebooks to – for all kinds of things, and a lot of it was about preparing to, for example, speak to my political colleagues, so clearly it – they would be more political in nature. So it may be – may have been that I was setting this out as something to say to my political group, just to remind me that those were the kind of things that were happening at the time.

Counsel Inquiry: There are similar entries that relate to what appears to be 19 July, Freedom Day, self-isolation and chaos at that point, but the one that I’m next interested in, please, is page 59, you make an entry under the heading “Foreign Travel”. It relates to the Covid-O meeting. And what you say there is that generally – a different page. I can read it to you:

“Generally invited to meetings.

“Have our own analysis [and] access to data so can make own conclusions.

“On this occasion we were not invited.

“–> learnt of English moves via the media.

“Wholly unsatisfactory situation.

“Unapologetic –> not being driven by public health.”

Why was it unsatisfactory that the Welsh Government, if they were, were learning of decisions through the media? Did you raise that with the health minister at the time?

Baroness Eluned Morgan: I raised it in several Covid-O meetings. We were being invited very late, we were being given information sometimes minutes before the meetings and, as clearly I’ve stated there, we weren’t even invited to – to that particular meeting.

I do – I am aware that in one meeting I was very concerned that the thing that was driving decisions was actually the economy and, more than that, it was tourism in London and the need to reinstate and to encourage more tourism in London.

And, as I say, quite often on those meetings I was actually a lone voice. So there were occasions when the devolved nations would be in the same position as me, but there were occasions where … where the public health concern was – was being expressed by Wales, and sometimes, to be fair, by the health minister, but they were often out-spoken by the other representatives on the group, which represented the economy and transport and all kinds of other areas. And, you know, that’s allowed, it’s just that the – it’s clear that the majority would come out against the kind of public health position because of the make-up of the people on the committee.

Counsel Inquiry: I just want to now turn to the final topic, if I may, and it’s a theme that we touched upon at the beginning of your evidence, and it relates to the understanding of regulations and the clarity of regulations.

If I can call up INQ000316403.

These are messages with Rebecca Evans in relation to what was and was not allowed. I make it clear it’s not just her, there are other similar types of questions from other individuals such as Kirsty Williams, Lesley Griffiths, Lee Waters and so on, and these are just a handful of examples, but what we see on 5 July 2020, at 11.45.48, for those looking at the screen, she asks:

“Just checking that this remains correct: that people can go to stay at their own static caravans etc from 6th July (but can’t rent them out until 11th). I have had a few queries as the guidance on the website isn’t 100% clear. Many thanks!”

You reply and you say:

“You can’t go and stay in your own static caravan until the 11th. You can go and prepare it if the site manager allows but can’t stay. FAQ on this published on Friday.”

So, in short, you’re correcting your colleague’s understanding; is that a fair characterisation?

Baroness Eluned Morgan: I think that shows that actually the answer was already public, so there was an invitation there to go and look at the information that was already in the public arena.

Counsel Inquiry: It does show that it was already public but it also shows that individuals within government did not understand or were aware of the own regulations that the government was passing; is that a fair comment?

Baroness Eluned Morgan: We were – we were going through really detailed questions, and there were lots and lots of different aspects to those questions, and if people needed clarity I don’t think there’s a problem with making those situations more clear for people –

Counsel Inquiry: I’ll give you another example.

Page 52, please, it’s 18.37.20, Ms Evans asked:

“Since you’re all here, can children leave the country for swimming lessons?!”

You reply shortly thereafter, at 18.50 – so 6.50 – 01:

“People shouldn’t be crossing county borders to do sport unless they are professionals – including children swimming I’m afraid.”

The point here is, would you agree that members of the public who were being asked to follow these rules may be frustrated that the Welsh Government itself was on occasion confused by the rules, that there was not, in short, clarity over what was and was not allowed?

Baroness Eluned Morgan: I think the clarity was probably there in the regulations, but quite often people wanted us to read the regulations for them. So the rules were clear, people needed to go and read the rules that were set out and the guidelines that were set out. And we spent a huge amount of time talking to stakeholders about those regulations. So I’m not sure if that’s fair. I think we –

Counsel Inquiry: Sadly –

Baroness Eluned Morgan: – the information was available.

Counsel Inquiry: Sadly it’s clearly a problem, though, if your own ministers and members of government do not simply go, as you say, to public information to find it but need to speak to their colleagues. It’s not a happy situation.

Baroness Eluned Morgan: I think they were just trying to take shortcuts to gather information.

Ms Cecil: Chair, those are the questions that I have for you, Minister. There are some further questions.

Lady Hallett: I was hoping to finish you before the break, Baroness Morgan, because I know, as a serving minister, you’ll have other duties. Can you bear if we take a short break now and then come back to finish?

The Witness: Sure.

Lady Hallett: Thank you very much. I shall return at 11.35.

(11.20 am)

(A short break)

(11.35 am)

Lady Hallett: Ms Heaven.

Questions From Ms Heaven

Ms Heaven: Thank you.

Good morning, Ms Morgan, I represent the Covid-19 Bereaved Families for Justice Cymru.

I appreciate you were only in post in May 2021, but we understand you were a member of the Cabinet, so I just want to ask you if, as part of the Cabinet, you became aware of a letter that came in, a document that was published by the Commissioner for Older People, Helena Herklots, in April 2020.

So if we can have to up INQ000181739, please.

If you can just indicate, my screen’s gone blank – oh, no, there it is.

We know that this was published by Helena Herklots on 15 April because she’s explained to the Inquiry she was so concerned about what was happening in care homes. And just to have a very quick look at it before I ask you whether or not you knew about it at the time, you can see there, can’t you, that she’s saying:

“Older people and their families continue to raise significant concerns about the issues currently facing care homes …”

She’s raising concerns around testing, availability of PPE. And if we just look down at the list, again PPE and testing amongst other things being raised.

If we just look at the last bullet point, she’s also saying:

“Information is captured and published about levels of infection and deaths, so there is transparency and so that the data informs decisions including on resource allocation.”

If you look slightly below that she’s asking the Welsh Government to publish a specific action plan and citing, just below that, that there are now suspected nearly a third of care homes in Wales have coronavirus.

So my question to you is: as a member of Cabinet, did this document come to your attention at the time? To assist, we can’t see it was being discussed in Cabinet minutes, so do you remember whether it was brought up in Cabinet?

Baroness Eluned Morgan: I can’t recall that coming up in Cabinet. There were general discussions about care homes, I can’t remember whether this particular statement came before us.

Ms Heaven: But do you agree that as a minister it should have been brought to your attention? And I know you obviously were not responsible at this point, but just generally in the Cabinet do you think this sort of a document should be something that’s raised in Cabinet, bearing in mind where it was coming from and the concerns that were being raised?

Baroness Eluned Morgan: Well, we all have different ministerial responsibilities and the deputy minister responsible would certainly have had sight of this and I’m sure would have drawn people’s – the relevant people’s attention to it. When I did step into the role as health minister, I have met with the Older People’s Commissioners and have correspondence with her.

Ms Heaven: Now, the Inquiry’s seen that the response did come from Julie Morgan, the deputy, and we’re not going to look at that letter now, but essentially the response was that she was not convinced that an additional action plan above the existing arrangements would add value.

Just to assist, this is what Helena Herklots told the Inquiry, she said:

“I thought that was inadequate …”

And that she was:

“… angered actually by the notion that working on an action plan, producing an action plan, bringing the work together, would add no value, at a time when people were dying in care homes where families were distraught. I just thought the response was inadequate.”

So again my question is this: was Cabinet sighted on the response that was to go out to Helena Herklots, do you recall?

Baroness Eluned Morgan: That wouldn’t have been normal practice for us, to see letters that go out in response from –

Ms Heaven: Was it discussed?

Baroness Eluned Morgan: I can’t recall that it was discussed.

Ms Heaven: Okay.

Second topic, please, is learning of lessons.

Now, as I said earlier, it’s understood that you came into post in May 2021 as Minister for Health and Social Services. Now, you will understand that the people in Wales who lost loved ones from Covid-19 are looking to this Inquiry, and indeed members of the Welsh Government like yourself, for answers as to not just what went wrong but also to see if the Welsh Government has reflected and considered what you could have done better, and of course you’ll understand the trauma of those who lost loved ones in care homes.

I’ve just taken you to some of the very serious concerns being raised by Helena Herklots. Now, no doubt when you came into your role in 2021 you will have reflected on these issues, and you will of course have reflected on the critical findings of the Senedd Health, Social Care and Sport Committee reports into the Welsh Government’s response to Covid-19 in care homes in Wales.

Now, you rightly acknowledged a moment ago, when you gave evidence in Welsh, that many people are anxious to get replies to questions, and you very fairly say in your witness statement there is a need to provide answers to those who have lost loved ones.

So bearing this in mind, can I ask you this, and it’s whether you consider that the Welsh Government made any mistakes in how they dealt with care homes in 2020 in response to the Covid-19 pandemic and whether there are lessons to be learnt?

Just to be clear, this is not a question about hindsight, which of course we’ve heard a lot about in this Inquiry, it’s about whether you think mistakes were made in respect of the management of care homes on what was known by the Welsh Government at the time.

Baroness Eluned Morgan: Well, I know that the health minister gave evidence yesterday around the issue of testing and he was the one in a position to be able to make decisions in relation to that. What I can tell you is in relation to the time when I was health minister I did try and learn some of the lessons. So, for example, when Omicron hit, one of the things we did was to tighten up guidelines around people who visited multiple sites, and that included care homes. So that was something that I know we tried to learn the lesson of.

Ms Heaven: But what lessons were learnt by the Welsh Government? I know you were in post in May 2021, but you must have had to reflect back, because we know the Senedd was undertaking enquiries, so you must have had to reflect back. Are you able to tell the bereaved in Wales and indeed this Inquiry what lessons your department learnt about how this was managed in care homes in 2020?

Baroness Eluned Morgan: So the example I’ve just given you is an example of the lessons learnt. So one of the things that we were concerned with is the potential for people who moved from one care home to another to be carrying the virus, and that’s why when Omicron hit we tightened up the guidelines around the visiting of multiple sites.

Ms Heaven: What about testing, PPE, discharging of people into care homes with Covid symptoms in 2020? Were any lessons learned about that, do you think?

Baroness Eluned Morgan: Well, later on a lot of that was put in place. So at the beginning of the pandemic there may have been issues in relation to the testing opportunities. That wasn’t true later on in the pandemic.

Ms Heaven: Thank you very much, my Lady.

Lady Hallett: Thank you.

Thank you, Ms Heaven.

Questions From the Chair

Lady Hallett: A couple of questions from me, Baroness Morgan.

You mentioned in your evidence in answering questions from Ms Cecil that you got what you called learning from your international relations, which, as you said – you mentioned two things, ventilation and face coverings. What was the learning you got in relation to face coverings from international experience?

Baroness Eluned Morgan: What we were looking for there was not – was what other people were doing rather than – and then I fed that to the appropriate department at the time. So it wasn’t what I learnt, it was information that I then passed on. And it was up to them to determine that.

Lady Hallett: Were you getting the impression that the international experience was that use of face coverings was a good idea?

Baroness Eluned Morgan: I wasn’t making any judgements on it, I was just passing on the information of what other people were doing.

Lady Hallett: I appreciate you weren’t making a judgement, but did you get the impression that international experience was suggesting that people in foreign countries were saying that face coverings were a good idea?

Baroness Eluned Morgan: In some instances that was the case, particularly perhaps in educational establishments.

The Chair: And you passed that on to your colleagues?

Baroness Eluned Morgan: I did pass that on to my colleagues.

Lady Hallett: You talked about the cautious approach of the Welsh Government. It doesn’t seem to have acted on that kind of experience when it came to face coverings.

Baroness Eluned Morgan: We were following a lot of the advice given to us by the Chief Medical Officer.

Lady Hallett: Right.

The only other question I have, and just to be fair to you, you said that you had deleted your WhatsApp messages, why did you delete them?

Baroness Eluned Morgan: I think – I mean, I didn’t delete anything deliberately. I think I’ve handed over reams of –

Lady Hallett: I understand that, I just – really it’s a simple question, to be fair to you, because, as you know, WhatsApp messages cause a lot of interest in certain circles, so it’s just really why and when did you delete them.

Baroness Eluned Morgan: I think, I don’t know quite why or when, but clearly there were only a couple of examples where that happened and you do have the information from those.

Lady Hallett: Right. So you can’t help on why or when?

Baroness Eluned Morgan: I can’t help on that, no, apart from what’s in my evidence.

Lady Hallett: Right.

Thank you very much for your help. You’re now free to go.

The Witness: Diolch, thank you.

(The witness withdrew)

Lady Hallett: Yes, Ms Cecil.

Ms Cecil: Thank you. May I call Rebecca Evans, please.

Ms Rebecca Evans


Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you waiting for too long.

The Witness: No.

Ms Cecil: Good afternoon, Minister. If you could please give us your full name.

Ms Rebecca Evans: Yes, Rebecca Mary Evans.

Counsel Inquiry: Thank you for attending today and assisting the Inquiry. While you give your evidence, if you could please keep your voice up and into the microphone, and there is a recording being taken, and indeed a note as well, of your evidence today. If I ask you anything that is not clear or you need me to repeat anything, please just say.

Ms Rebecca Evans: I will, thank you.

Counsel Inquiry: Minister, you provided a witness statement, INQ000346272, for the Inquiry. It was signed on 1 November of 2023. I understand that there is one correction that needs to be made to that statement, and it’s on paragraph 232 of the statement, and where it reads “public sector” in relation to contracts, it should read “private”?

Ms Rebecca Evans: That’s correct.

Counsel Inquiry: So replace “public” with “private”?

Ms Rebecca Evans: That’s right, thank you.

Counsel Inquiry: With the exception of that, is your statement true to the best of your knowledge and recollection?

Ms Rebecca Evans: Yes, it is.

Counsel Inquiry: Thank you very much.

Minister, you were asked to provide a statement to this module in your capacity as Minister for Finance and Trefnydd, and, latterly, Minister for Finance and Local Government during the period that spanned January of 2020 to May of 2022; is that right?

Ms Rebecca Evans: Yes, that’s right.

Counsel Inquiry: Prior to your appointment as the Minister for Finance and Trefnydd, you held a number of portfolio roles and other ministerial roles; is that correct?

Ms Rebecca Evans: Correct.

Counsel Inquiry: Having initially been first appointed to Welsh Government in June 2014?

Ms Rebecca Evans: Correct.

Counsel Inquiry: You have been in government for quite some time now?

Ms Rebecca Evans: Yes.

Counsel Inquiry: Thank you.

You were appointed to the role of Minister for Finance and Trefnydd in December of 2018. That was when Mark Drakeford became First Minister?

Ms Rebecca Evans: Correct.

Counsel Inquiry: With regard to your responsibilities in that role, can you just give us a very short overview firstly in relation to your ministerial role in relation to finance and then, secondly, I’ll move on to your role with regard to Trefnydd?

Ms Rebecca Evans: Yes, so in relation to my role in finance, I’m in charge of the Welsh Treasury, I have responsibility for the strategic direction of the use of Welsh Government resources, budget monitoring and management, strategic investment, taxation policy, and also relationships with HMT and HMRC, to name just a few.

Counsel Inquiry: For those who are following outside of Wales, can you assist us with what the Trefnydd is, please?

Ms Rebecca Evans: Yes, the Trefnydd is our Senedd equivalent to the Leader of the House, so I would represent the Welsh Government and the Labour group on the Business Committee, and also respond to requests every Tuesday from colleagues in the Senedd asking for statements from the government on a whole range of issues.

Counsel Inquiry: Indeed, that role was subsequently transferred away from you in May 2021, when you inherited, instead, the responsibilities for local government; is that right?

Ms Rebecca Evans: That’s correct, yes.

Counsel Inquiry: But focusing, if I may, then, on your role with regard to finance, did that broadly stay the same throughout that period, January 2020, through the elections in May of 2021, to mid-February 2022?

Ms Rebecca Evans: Yes, and to this day, in fact.

Counsel Inquiry: Thank you.

You will understand that it’s in your role as minister for finance that I’m going to concentrate my questions on today, but of course if your answers will be assisted by any other issues that fell within your portfolio, please feel free to mention those. But generally speaking, your financial portfolio during that period of January 2020 to May of 2022, which is of course the date range the Inquiry is interested in, your portfolio was focused on managing the Welsh Government’s financial response to the pandemic?

Ms Rebecca Evans: Yes, that’s correct.

Counsel Inquiry: It’s also right that you led on all intergovernmental finance-related discussions on behalf of Wales?

Ms Rebecca Evans: Yes.

Counsel Inquiry: And the main forum through which those discussions were held were the Finance Ministers Quadrilateral; is that right?

Ms Rebecca Evans: Yes, that’s correct.

Counsel Inquiry: Just touching on those meetings for a moment, the quadrilaterals, do you think those meetings took place frequently enough over the duration of the pandemic?

Ms Rebecca Evans: It was certainly an improvement in terms of what came before. When I came into post in December 2018, the finance quadrilateral hadn’t met for a year, I understand, so that concerned me, so to my first meeting I took a paper which essentially set out some proposed terms of reference for future working, which would have been much more frequent meeting, a relationship of parity, rotating chairs, a shared secretariat and so on, and we did make progress on that. So over the course of the pandemic, the quadrilateral met much more frequently, so things improved in terms of the frequency of meetings, but the quality of meetings is always variable.

I will say that things have continued to improve in terms of frequency, and sometimes in terms of the quality of those meetings, following the intergovernmental review work as well, which has really helped put that finance group on a more – more formal footing, which has become more useful over time, so things definitely improved over the course of the pandemic.

Counsel Inquiry: Indeed, and it’s been formalised now, hasn’t it, as a standing committee, the Finance: Interministerial Standing Committee?

Ms Rebecca Evans: That’s correct, yes.

Counsel Inquiry: How frequently, broadly speaking, were you meeting during the pandemic period?

Ms Rebecca Evans: Over the course of the pandemic I think we would probably meet – I think we met around six times in the first six months, and then I think it was around four times in the next six months, so monthly every six weeks, something like that.

Counsel Inquiry: With regard to the formalisation into the standing committee, is that a structure that you consider would have assisted during the pandemic and will assist in the future?

Ms Rebecca Evans: Yes, definitely, I think the relations, certainly in terms of that structure, are definitely on a better footing for the next pandemic.

Counsel Inquiry: Thank you.

The next topic that I wish to touch upon, please, with you are sources of funding, so looking at the financial situation set-up between the UK Government and the Welsh Government and the fiscal framework.

The fiscal framework was agreed in December 2016, and that establishes the financial powers of the Welsh Government; is that right?

Ms Rebecca Evans: That’s right.

Counsel Inquiry: Just if I may summarise, obviously in headline form, because these issues can get very complicated, but trying to take them as simply as possible, there are four primary sources of funding for the Welsh Government; is that right?

Ms Rebecca Evans: That’s right.

Counsel Inquiry: Just breaking them down, we first have what are called the block grant which are funds that are granted by the UK Government.

Ms Rebecca Evans: Yes.

Counsel Inquiry: The second are those funds that are raised internally within Wales by means of taxation or other charges. The third is borrowing capacity by the Welsh Government. And the fourth is European Union structural funds that become available.

Ms Rebecca Evans: Correct.

Counsel Inquiry: So perhaps if I can concentrate, if I may, on the block grant and the relationships between Wales and the UK. Just very briefly, what is the annual block grant?

Ms Rebecca Evans: So at the time of the pandemic it was around £20 billion but now that’s increased to around £23 billion.

Counsel Inquiry: Just dealing with –

Ms Rebecca Evans: Sorry, I should say the 23 includes the money that we raise through tax so it would have been £18 billion in terms of block grant and the rest would have been raised in tax and around 20 now.

Counsel Inquiry: Just so that everyone understands what a block grant is in principle, that’s a level of public expenditure that is decided by the UK Government through the Treasury to be allocated to Wales each year; is that right?

Ms Rebecca Evans: Yes, that’s right, it’s very much a function of how much the UK Government decides is needed to be spent in England in particular, so the overall amount of money spent within the UK is definitely decided by the UK Government, and the block grant really does give us a population share of that, but also with a needs-based formula attached to that as well. So for every £100 spent in England we will have a population share of around 5.6, and then when you apply the needs-based element over that, it’s around 5.8.

Counsel Inquiry: Thank you.

And in addition to that annual block grant, which as you say is a share, effectively, of the overall public expenditure within the UK, the Welsh Government also receives what’s called the Barnett consequential funding element, and that can be both positive and negative, that’s why I say it can get complicated, but in very short form what is Barnett consequential funding?

Ms Rebecca Evans: So the block grant is the funding as you’ve described, and we would normally have that through a comprehensive spending review or a single-year funding round, but then applied to that we have changes that are made through the year and they’re formalised then at supplementary estimates, which happens right at the end of the year, usually around February time. And basically, if the UK Government departments increase spending in areas which are devolved, then we will receive that share, population plus the needs-based, but also, equally, if the UK Government departments underspend or money is shifted away from those areas where we have devolved responsibility, then our budget will be reduced as well. So that does make it very difficult, even in a normal year, to manage the budget, especially when you only get clarity at the very end of the financial year.

Counsel Inquiry: Indeed. So positive funding, just giving an example, plucked out of the air for the moment, is, for example, where the UK Government allocates funding, as you say, for a policy area that is devolved within Wales, it could be health, it could be education, and as a consequence there is then an additional sum that is provided to the devolved nation, applying what’s called the Barnett formula?

Ms Rebecca Evans: Exactly.

Counsel Inquiry: And that, for example, could be positive, but ultimately it’s for the devolved government to decide how to spend that money once it’s allocated. Alternatively, as you say, where there is an underspend within one of those policy areas within English budgets, then there will be a clawback situation or a negative formula that’s applied to the allocation of funding?

Ms Rebecca Evans: Yes, that’s correct, but sometimes those things will balance each other out at the end of the financial year as well, so you really are almost waiting until the end of the year to know what your budget is for the year that you’ve just been through.

Counsel Inquiry: That’s because those supplementary estimates that you’ve referred to come in January or February, towards the end of the financial year?

Ms Rebecca Evans: That’s correct. And one of the flexibilities that we have been asking the UK Government to consider, and which I think would be helpful for future years, would be for any additional funding which comes through following an autumn statement, so anything that comes through in supplementary estimates, or even reductions that come through in supplementary estimates, that we’re able to take those through into the next financial year.

So we did see some of that in the pandemic, so at the end of the 2020/21 financial year we were able to negotiate with the chief secretaries to the Treasury to take forward £600 million which had been announced very late in the financial year. It wouldn’t have made good sense for us to try to deploy that – I mean, that’s a huge amount of money for us – very late in the financial year, so it was agreed by exception that we could carry it over and it helped with our response in the next financial year.

So what we would prefer would be a situation where you’re not having to negotiate those kinds of things every time, but just as a part of the mechanism, if things come through very late, then you can manage over the financial years.

Counsel Inquiry: Just dealing with that for one moment and putting it in context, you said that that was an exception, and what are the normal limits on carry-overs into the following financial year?

Ms Rebecca Evans: So as part of the fiscal framework, we have the Wales Reserve. The Wales Reserve is able to hold overall £350 million. And crucially, the size of the Wales Reserve hasn’t grown at all since the time it was established, which means that actually in the next financial year it will be worth 23% less than it was at the time it was set. And you can – imagine trying to land your budget £23 billion on a Wales Reserve of £350 million. That’s a pretty high wire act in normal circumstances.

So, again, something that I think would help for the future would be for that Wales Reserve just to be uprated in line with inflation and then for that uprating in line with inflation to happen every year after that. And that’s something that it’s not just the Welsh Government calling for, it’s something that the IFS has said would be a good idea, the Wales Governance Centre, and actually it’s not a political point at all because recently in the Senedd we had a debate which was –

Counsel Inquiry: Perhaps I could just pause you there, Minister, only because you’ll appreciate that those very high-level issues are likely to be outside of the scope ultimately of this Inquiry, in terms of the bigger issues, and of course what this Inquiry’s focusing on is in relation to the pandemic. And of course financial flexibility in relation to the pandemic is one of those aspects, but you’re talking about much more significant issues.

Ms Rebecca Evans: Yeah, just to say the reason I am talking about it is to try to give some ideas for things that would help a government better respond to a pandemic in future.

Counsel Inquiry: Absolutely. And I’m sure that’s been taken on board.

If I may, though, deal with the upshot in relation to 2020 through to 2021, and the financial position with regard to Wales in relation to the pandemic response, if I can just take you please to paragraph 51 of your witness statement.

You give an example, going back to what you were saying before, of underspend and effectively money being recouped, and you explain that:

“The total underspend in 2020-21 by all UK government departments was £25bn – the UK Department for Health and Social Care alone underspent by over 9%, returning £18.6bn to the Treasury. Overall, UK departments returned almost 6% of their funding to the Treasury that year. In Wales, the figure returned represented only 1% of our available resources. A Barnett share of the funding returned to Treasury by UK departments would have been well in excess of £1bn, rather than the much lower £155m …”

Which was returned.

So is it correct that by the end of that 2020/2021 financial year, and I’m going to bring you into the finances in relation to the pandemic in due course, there was a return of £155 million to HM Treasury?

Ms Rebecca Evans: There was, but that only happened at least a year or perhaps even two years after that.

Counsel Inquiry: Indeed.

Ms Rebecca Evans: And that was because – there were discussions that were undertaken at official level with the UK Government whereby we would be able to switch revenue to capital at the end of the year, which is a normal thing, it happens all the time, but unfortunately in this year, because of course we do need the Chief Secretary’s agreement to do that, it was denied. Had we been able to switch that money from revenue to capital, then actually we would have sent nothing back at all to Treasury.

I think that this also, though, speaks to the importance of the Barnett guarantee as well, because can you imagine a situation where, right at the end of the year, supplementary estimates, we’re being asked to send £1 billion back to Treasury, that would have been completely unmanageable. So I think it does show how valuable the Barnett guarantee was for us as well.

Counsel Inquiry: Indeed, and that’s what we’re going to come on to. Really it’s really just to lay the groundwork and the foundations for what we’re going to be talking about in due course.

I do want to just pick up, if I may, before going into the detail of that, on one aspect within your statement, and it’s at paragraph 53, page 18, where you say that you considered that Wales had been treated unfairly. And that – and that’s because:

“There is a general approach from HM Treasury which treats devolved governments as ‘just another spending department’.”

What do you mean by that?

Lady Hallett: Again, we seem to be straying from Covid-19, unless you’re going to say this does affect the pandemic. This seems to be quite a big question about the devolution settlement and …

Ms Cecil: I can certainly bring it back to the pandemic, because that’s why I say it’s contextual as opposed to anything else.

Just in relation to the pandemic, was that something that you experienced or not?

Ms Rebecca Evans: I think it’s definitely the case from a finance perspective, because the UK Government I don’t think recognises that we are responsible to the Senedd, that we have an incredible amount of scrutiny from the Welsh media, we have the Welsh public very interested in the choices that we make. And I think that in treating us like another UK Government department, it doesn’t necessarily recognise the unique context that we have here in Wales – and the fact that we are a government, we’re not just another department.

Counsel Inquiry: I’m going to bring you now, if I may, into the pandemic response and financial issues, and firstly then deal with your role in Cabinet and the Star Chamber.

You obviously, along with other Welsh ministers, were members of the Welsh Cabinet. Each minister, we’ve heard, has their own portfolio areas. Generally speaking, to what extent do you believe your contribution at meetings of Cabinet or in the ministerial calls were guided in the main by financial considerations? How were you putting forward your portfolio? Or were you looking at the broader picture?

Ms Rebecca Evans: I think that ministers in Cabinet have two distinct but important roles: so on the one hand you’re custodian of your own portfolio, so I was responsible for all finance matters, but equally then, you know, you take part in those Cabinet-wide discussions which require a Cabinet view.

So 21-day reviews would be a really good example of those discussions which we had Cabinet-wide. Of course the health minister would bring a particular perspective, I would bring a financial perspective, but then you also consider it in the round as well, because you have collective responsibility for those decisions which are taken.

Counsel Inquiry: How do you consider that you struck the balance in your contributions then in Cabinet between considering, as I say, your portfolio responsibilities of financial and economic considerations and how NPIs or any other intervention could be delivered in terms of finances available and that of public health concerns and scientific advice?

Ms Rebecca Evans: I think there are good examples where of course we had to consider the financial implications of the choices available to us, and I know there’s an intention to come on to the firebreak and potentially Omicron in the session as well, and I think that those will give examples as to where the financial considerations were particularly acute in those discussions.

Counsel Inquiry: Did you undertake any modelling of NPIs in relation to the financial impacts of acting or not acting, essentially both sides of the coin, did you undertake any financial and economic modelling in that respect?

Ms Rebecca Evans: So I didn’t do that myself, but of course we’ve got –

Counsel Inquiry: Within your team.

Ms Rebecca Evans: We’ve got Welsh Treasury, and we’ve got a team of analysts, we’ve got the Chief Economist and his team of economists within the Welsh Treasury as well, and they would undertake analysis.

What I will say as well is that they were involved very early on and they worked with the policy leads for various things. So the Economic Resilience Fund, for example, they’d be working very early on with the policy leads to undertake the analysis there, rather than being presented with a proposal which is almost done and then considering the economic impacts of it.

Counsel Inquiry: Thank you. I’m going to move now to the Star Chamber, and it was established by the First Minister on 23 March 2020, so relatively early in terms of the pandemic, and that was to oversee and co-ordinate the Welsh Government’s overall fiscal response to the crisis; is that right?

Ms Rebecca Evans: That’s correct.

Counsel Inquiry: Can you assist with why it was established at that point? It’s obviously a new meeting point.

Ms Rebecca Evans: It was, it was clear by that point that the response to the pandemic was going to require significant, you know, significant fiscal response, so it really was to have that forum where we could have those discussions, and one of the first things that we did through the Star Chamber was undertake the re-prioritisation exercise –

Counsel Inquiry: I’m going to come on to that in just a moment, so I’ll just pause you there.

In relation to the composition or make-up and purpose of the Star Chamber, essentially it was so that a small group could assess the various financial papers, proposals, budgets, as you say, fiscal considerations within that small group and provide advice to you; is that right?

Ms Rebecca Evans: Yes, that’s correct.

Counsel Inquiry: In terms of decision-making within the Star Chamber, did the Star Chamber take those decisions or did you take decisions?

Ms Rebecca Evans: No, I took the decisions. The membership of the Star Chamber, other than having one other minister there, was officials and also one external person and special advisers, so they wouldn’t have had the authority to take those decisions in any case.

Counsel Inquiry: Thank you.

Just I’m asking for your opinion for one moment, do you think the Star Chamber should have taken those decisions collectively, like the Cabinet, in terms of those financial decisions, or were there benefits to final decisions being vested in you alone?

Ms Rebecca Evans: No, I definitely think that those are decisions for the finance minister rather than decisions which should be taken by anyone else.

Counsel Inquiry: Thank you.

I’m going to turn now to the re-prioritisation exercise that you’ve just mentioned, and indeed just dealing with that.

That exercise was to identify areas of Welsh Government spending, both revenue and capital spending, which could be repurposed, in short, in order to assist with the Covid-19 response; is that right?

Ms Rebecca Evans: Correct, yes.

Counsel Inquiry: Those funds would then be repurposed and held in what was called the Covid-19 response reserve?

Ms Rebecca Evans: Yes.

Counsel Inquiry: Was that exercise, that re-prioritisation exercise, completed once or at various points throughout the pandemic?

Ms Rebecca Evans: In the end it was only needed the once, so we undertook that at the start of the pandemic, and it resulted in around a quarter of a billion pounds going into the Covid-19 response reserve.

I did warn colleagues at the time that it might be something that we would need to revisit and have another round of re-prioritisation, but in the event, because of the consequential funding which was coming through and also the Barnett guarantee, which came later, we didn’t need to undertake any further re-prioritisation, but colleagues would re-prioritise within their own budgets as well.

Counsel Inquiry: Thank you.

Did the response reserve also include the money from the UK Government that came in?

Ms Rebecca Evans: Yes, it did, as well as realignment of WEFO budgets as well.

Counsel Inquiry: Of what, sorry?

Ms Rebecca Evans: European funding budgets.

Counsel Inquiry: Thank you, European funding budgets.

With regard to the re-prioritisation exercise, what considerations did the Star Chamber have in mind when considering that exercise?

Ms Rebecca Evans: So we set some principles by which colleagues should – and when I say colleagues, I mean my ministerial colleagues – should undertake re-prioritisation within their portfolios. The first of those, that we should obviously continue to do those life and limb things which needed to be undertaken, and then also we couldn’t really touch our statutory commitments, and then also we needed to protect as far as possible our key programme for government commitments, but beyond that I asked colleagues to look through their budgets to see what could be repurposed, and I’ve given in my written evidence a range of examples there.

Counsel Inquiry: Indeed, and the Star Chamber then in turn reviewed those ministerial – the ministerial advice that was coming in from each department in relation to the re-prioritisation; is that right?

Ms Rebecca Evans: That’s correct, and I think I had a meeting with each minister as well to talk through their proposals, what the implications would be, and to push a little bit further to see if there was anything else they could give up at that point as well.

Counsel Inquiry: And if – just dealing with pandemic responses and interventions, if a minister wished to fund such a pandemic intervention from within their existing budgetary allocations, so, for example, the re-prioritisation within their existing budget, not to put it to the Reserve but to deal with an intervention themselves, so it was cost neutral or had a cost, did they have to seek your approval or were they ministerial decisions within departmental governmental decision-making?

Ms Rebecca Evans: No, so I allowed colleagues to re-prioritise within their own budgets, and again I’ve got some examples in the paper. So the education minister, for example, was able to re-prioritise some funding from within her budget at the time towards providing children with IT kit in schools. So I just needed to be informed of those choices which were being made, I didn’t have to approve them.

Counsel Inquiry: Were there any financial limitations in relation to the extent to which individual ministers could repurpose their own budgets?

Ms Rebecca Evans: No, beyond what they’d already given up, there was nothing that they couldn’t do there.

Counsel Inquiry: With regard to the Star Chamber, how frequently did the Star Chamber meet?

Ms Rebecca Evans: So at one point we were meeting every day, and then I think it was a couple of times a week at least then through the pandemic, for quite some time, until October of 2020, when we met for the last time. And the reason for that, really, was that the systems were well set up, we had already funded then some of the big programmes that we needed to fund, so it was just a case of making sure that those programmes had enough money to keep going, it didn’t need that kind of level of scrutiny and interrogation that late on, because it was all functioning.

Counsel Inquiry: You are aware that there were some criticisms or concerns in relation to how the Star Chamber was operating, whether it was transparent, for example, how decisions were being made, how individual requests for funding were being dealt with. Did you take any steps to address those concerns?

Ms Rebecca Evans: Yes, so I knew that some colleagues felt a bit uneasy about the Star Chamber process, and I think that’s understandable because it was such a diversion from the way in which we would normally go about setting the budgets, which – you know, we have our normal budget-setting process, when my colleagues have their budgets then they manage them through the year. This was a completely different approach. So I understood the concern there.

In the terms of reference for the Star Chamber, it said that other ministers could be – could attend the Star Chamber by invitation. We changed that pretty quickly so that other ministers could attend the Star Chamber at their requests, and many of them did, and it was to talk through some of those proposals, because also it meant that we were able to ask those questions in real time, it wasn’t a case then of, you know, potentially holding up things, we definitely didn’t want to do that.

So we did change that approach over time to try to make colleagues feel more comfortable with what was a very new approach to allocating funding.

Counsel Inquiry: Thank you.

You also developed during the course of the pandemic a financial dashboard, is that right too, setting out, in short, resources that the Welsh Government had available to respond to the pandemic, and the aggregate and detailed allocations that had been made to date, so that other ministers and individuals could easily access and see where finances were being allocated?

Ms Rebecca Evans: That’s correct. And I shared it with Cabinet on a weekly basis, so everybody had the latest picture.

Counsel Inquiry: Did that dashboard contain, in your view, all of the relevant information in terms of fiscal information and economic, financial information that was required by ministers to assist in their decision-making, or do you consider that further information would have been helpful?

Ms Rebecca Evans: So I think that the purpose of the dashboard really was transparency for colleagues. I think it was mainly there to help me in my decision-making, but also wanting to be clear with colleagues as to where we were overall and to explain to colleagues, I suppose, if there were times when I wasn’t able to provide them with additional funding.

So I think that it did provide, you know, a really year, of where the funding was going, and it showed the sources of the funding. But then we had four pillars where the funding went to: supporting the economy, health and public services, the voluntary sector and communities, and transport. And those were our four pillars of the response to the pandemic, if you like.

Counsel Inquiry: And essentially a visual aid?

Ms Rebecca Evans: Yes, yeah.

Counsel Inquiry: Thank you.

Now if I can turn, please, to March of 2020 and just deal briefly with your interactions with the then Chancellor, Rishi Sunak, in relation to funding and planning with regard to the potential impact of the pandemic. You wrote a letter on 6 March. We can see that on the screen there.

Is that the first time that funding for the pandemic was raised between the Welsh Government and the UK Government?

Ms Rebecca Evans: Probably. I couldn’t say for sure. I can’t tell if there was a finance quadrilateral before that date. If there was, it would have been raised there. But in writing I think that’s the first time that it’s raised.

Counsel Inquiry: That was followed up by a written statement on 11 March, which explained that you were working closely with the UK Government and other devolved administrations to prepare for the Covid-19 response. But you say in relation to those measures, that would be enacted in terms of the NHS and other measures for business support and individual support, that further clarity was needed.

Can you recall now what was the issue in relation to a lack of clarity?

Ms Rebecca Evans: Yes, so the letter that I wrote to the Chancellor on 6 March was ahead of the spring budget, so that’s almost a set piece letter that I write ahead of every fiscal event setting out the priorities for Wales, and in that I do recognise that there would be an impact beyond health and social care of the pandemic and I do say that it would require a significant fiscal remedial package from the UK based on need. And then 11 March, and the significance of this written statement is that that was the day of the UK Government’s spring statement .

Now, although the Chancellor announced some measures in that in relation to support for business, and also was clear that the NHS would get all of the support it needed, actually there was no funding which came through in the spring statement. That funding would come later through the form of the Barnett guarantee, so it was that kind of clarity that we were after really –

Counsel Inquiry: Thank you.

Ms Rebecca Evans: – but I should say that we do – we did make it clear that we were welcoming those early remarks about the health service and also about support for business as well.

Counsel Inquiry: Indeed.

In your subsequent correspondence between you and the Chief Secretary to the Treasury in relation to – I don’t need to necessarily have that brought up, but that’s very helpful – setting out, essentially, what you believe the various allocations of funding according to the Barnett formula would be.

When did you first receive confirmation about the extra funding that would be available and received by you, the Welsh Government?

Ms Rebecca Evans: So we received small amounts of information over a period of time, so this was one of the real challenges that we had at the start of the pandemic, was understanding what the size of the consequential funding was and, you know, what it applied to, if you like. So you can see actually in the letter that you’ve referred to on the 13th that I wrote to the Chief Secretary to the Treasury, I’m actually in that letter sharing my planning assumptions, because we didn’t have any concrete information from Treasury so we had to set out what we assumed would be coming to Wales, having applied the Barnett formula for our own calculations to make that understanding, and I’m saying to the Chancellor there essentially, “This is what we’re factoring into our assumptions, you need to tell us if we’re wrong here”.

So there’s all that as well. But I think, importantly, in that letter, I do set out that Treasury is in a unique position to enable or prevent the devolved governments from taking timely decisions to respond to the crisis. So we’re even setting that out in March, and of course that would become important later on through the firebreak and Omicron and so on.

Counsel Inquiry: Can you recall when clarity was provided?

Ms Rebecca Evans: So ultimately clarity came in the autumn statement of that year when we had the transparency tables through. So all the way through March, April, May, June, July we were having small amounts of information coming through, and that would happen quite regularly but it was often the case, and I’ve seen notes from officials about their meetings with the devolved team in Treasury, that sometimes even the devolved team in Treasury wasn’t aware of announcements which were coming through, so getting the right information was really tough.

When we got to the Barnett guarantee, that helped a lot, but even after that we were pressing for a reconciliation, which is essentially where they set out the different sums that have been – or the different interventions that have been provided for through the guarantee, so that we can look at it and see what’s included and what isn’t. Because sometimes there were big ticket items, for example additional funding for Transport for London, now, that would lead to significant consequentials for us but we didn’t know if it was included, so, you know, that made it difficult for us.

Counsel Inquiry: Thank you. And just dealing then, as I say, going back to the March position, so before the Barnett guarantee and so on, the Economic Resilience Fund was announced by the First Minister on 30 March of 2020, so still relatively early in the pandemic. That was, in short, the Welsh Government’s business support scheme; is that right?

Ms Rebecca Evans: Yes.

Counsel Inquiry: In relation to that, what was the purpose of the ERF, the Economic Resilience Fund?

Ms Rebecca Evans: So the minister for economy was in charge of the Economic Resilience Fund, my role was about releasing the funding and ensuring that the interventions were affordable to the Welsh Government, so, you know, using things like the dashboard and the Star Chamber and so on. But the purpose of the fund really was to support businesses in a number of ways. One, if a business was in lockdown, for example, we’d support their operational costs. It’s really important to recognise that the Welsh Government is not responsible for wage costs, so UK Government is in charge of wage costs, so furlough, for example –

Counsel Inquiry: So those were UK Governmental schemes that applied across the whole of the United Kingdom?

Ms Rebecca Evans: Yeah, and we wouldn’t have the systems or the fiscal power to do that, what we could do was support operating costs. And we always looked to see if there were ways in which we could potentially fill the gaps in some support as well. So I think I recall – and the economy minister would be better off to answer these questions, but support, for example, around start-ups and so on. So we tried to fill the gaps wherever we could.

Counsel Inquiry: Essentially an additional funding resource to that which was being provided across the United Kingdom by the UK Government in its overarching response?

Ms Rebecca Evans: That’s right, yes.

Counsel Inquiry: Thank you.

One of the themes that does arise within the minutes of the Star Chambers is the potential for duplication between the different forms of financial support, including the ERF. Was that something that concerned you, effectively that you had a number of funds that could all be utilised by the same individuals, so you had that duplication?

Ms Rebecca Evans: I think that really showed part of the value of the Star Chamber, in the sense that we would have that overview across all of the interventions which were taking place. And we were very clear. For example, you’ll see in the minutes of some of the Star Chamber meetings we would have proposals for financial support for a particular sector, but we would ask first: well, hang on, are the staff able to be furloughed? And, you know, asking those kind of questions, to avoid duplication, we were very careful to do that. And I think that was one of the benefits of the Star Chamber.

Counsel Inquiry: Thank you.

I now want to move, if I may, to the May/June period of 2020, so moving through the pandemic, and in the Cabinet meetings that took place on 4 May 2020, uncertainty was noted with regard to the prospect of further consequentials owing to a Treasury-based re-prioritisation exercise across Whitehall, and a risk, therefore, was identified to the Welsh Government that it could overcommit to the response and recovery measures early in the financial year, with limited opportunity to free up resources from elsewhere later.

Firstly, at that point, you’ve already explained, all the way through until the Barnett guarantee you considered the position to be uncertain generally; is there any way that that could have been mitigated in May and June of 2020?

Ms Rebecca Evans: I think much clearer indications from UK Government in terms of the interventions that it was making, what the funding would be, where the funding was coming from. So you’ll see in those minutes that I describe my concern about the fact that the UK Government’s re-prioritisation exercise to which you refer might have included health and local government. Now, those are two really big spending blocks for the UK Government, extra important for us here in Wales comparatively, so if the UK Government was to be reducing funding through parts of health or parts of local government, then it would have a knock-on impact for us in the way that you described at the start about those negative consequentials, so that was our real concern there.

Counsel Inquiry: In terms of the impact that all of those different factors had on decisions the Welsh Government was taking at this stage of the pandemic, did that actually have any impact on decision-making in relation to NPIs or any of the bigger decisions that were taken?

Ms Rebecca Evans: So I don’t think it impacted on the big decisions that we were taking at this point, but we were carrying an awful lot of risk in terms of the allocations that we’d already made and the commitments that we’d already made. So it was a very, very uncomfortable place to be when you don’t have the certainty that the funding’s going to be there. But we were making those decisions in any case.

Counsel Inquiry: At that point, really towards the end – coming towards the end of the summer, was a second wave being foreseen, or was that something that was still some time away from being predicted, from your recollection?

Ms Rebecca Evans: So are we talking July or …?

Counsel Inquiry: June. June 2020.

Ms Rebecca Evans: Let me see. Well, on 4 June I did, alongside Ken Skates, write to the Chancellor, and at that point I was asking about the intention to revive the Coronavirus Job Retention Scheme, so furlough, or the self-employed support scheme as well in the event of a second peak or of the need for local lockdowns, so obviously we were thinking about that as early as June 4th.

Counsel Inquiry: There were a number of communications between you and the UK Government and your colleagues, actually, across the devolved administrations, in relation to funding through the pandemic. And indeed, just picking up on the letters that you were writing on 3 July 2020, you sent a letter to the Chancellor of the Exchequer.

And that’s INQ000066172.

You talk about the general current economic conditions. Of course this is after coming out of lockdown essentially, moving through.

And it talks about, as I say, the UK economy and the retraction there, the recession. It then continues to speak on and deals with employment support schemes and the Coronavirus Job Retention Scheme, the self-employed income support scheme.

Those are topics that we will revisit, but if I can just deal with one aspect there. You asked them for clarification as to whether there is an intention to revive the JRS and SEISS schemes if there is a second peak or local lockdowns.

Did you receive, firstly, the JRS and the SEISS? Those were UK Treasury-wide schemes; is that right?

Ms Rebecca Evans: That’s correct.

Counsel Inquiry: They’re the furlough schemes and those that are related to self-employment –

Ms Rebecca Evans: Yes.

Counsel Inquiry: – support also.

To what extent was the Welsh Government, if at all, involved in decision-making regarding those schemes?

Ms Rebecca Evans: So the first thing to say is we didn’t receive a response to the letter to which I refer, which is on the screen at the moment, which was sent on 4 June.

We weren’t involved in the setting up of the furlough schemes or the self-employed support schemes. Those are very much UK Government functions in the sense that those wage support schemes and those – you know, benefits and welfare, it is a reserved function, so we wouldn’t expect to be, you know, deeply involved in the detail of that, but nonetheless you would expect to have at least some kind of discussion about what might be – you know, what might be helpful for the response in Wales. But those kind of discussions really were about UK Government telling us, through the finance quadrilateral meetings, what their intentions were rather than, you know, exploring with us the shape of those, those schemes.

Counsel Inquiry: Thank you.

Just dealing with those schemes, what sorts of decisions, in terms of the decisions that the Welsh Government would be taking, would those schemes have an impact on?

Ms Rebecca Evans: So those schemes, and we’ve been really clear that we absolutely welcomed them, they were the right thing for the UK Government to do, those schemes allowed us, when they were available, to take decisions, for example, about lockdown. The challenges came when those schemes weren’t available, then the impacts of locking down and preventing businesses from operating would have been awful. But in the sense of, you know, large-scale business closures, you’d have, you know, large-scale unemployment, you’d have businesses closing and just not being able to re-employ their staff again. So furlough was absolutely critical in terms of allowing businesses – we called it hibernating – to hibernate and then come back.

Counsel Inquiry: So essentially you saw them as closely related to lockdown –

Ms Rebecca Evans: Yes.

Counsel Inquiry: – decisions? Thank you.

There were a number, then, of further conversations with your counterparts in other devolved administrations, government departments and indeed the Treasury, and eventually there came a stage where there was a Barnett guarantee that was agreed upon.

Firstly, what was the Barnett guarantee?

Ms Rebecca Evans: So the Barnett guarantee reflected the consequential funding which would come to Wales as a result of decisions taken by the UK Government in areas which were devolved to Wales. But, as you’ve described, the difficulty was there in terms of getting a proper understanding as to what funding exactly would be coming to Wales, and we needed that to be able to plan.

I should say the scale of the additional funding which came to Wales in that financial year 2020/21 was huge, it was £5.2 billion, a quarter of our normal budget, so we did need that kind of certainty. What the Barnett guarantee did was say that: for the rest of the financial year your Barnett consequentials will not fall below this particular point.

So when that arrived it was very useful. It should have happened earlier and we should have had that kind of reconciliation earlier than we did then, which came at the autumn statement. So it was definitely a huge step forward, really helpful, but even more clarity was needed than we were given.

Counsel Inquiry: What additional clarity or flexibility would you – well, firstly, did you ask for and, secondly, did you receive?

Ms Rebecca Evans: So in terms of clarity we were asking all the way through the year, both administerial level and at official level for that reconciliation, because that really does tell you where you are in terms of the consequential funding. So that didn’t come till the autumn, which was unfortunate. You know, were there to be another pandemic, if we could have those reconciliations every – every couple of months, that would help a lot in terms of that clarity and transparency.

In terms of the fiscal flexibilities, what we did – asked about was that carrying over at the end of the financial year, which I talked about previously. We asked to increase our borrowing limit, bearing in mind, of course, we can only borrow for capital investment, which is essentially infrastructure rather than day-to-day spend.

We also asked for full access to the Wales Reserve. So I’ve described how that’s worth £350 million. That would have helped a bit, especially at the start of the pandemic, but in any financial year you’re only able to draw down £125 million revenue and £50 million capital. So those seemed pretty arbitrary in terms of drawdown limits. And the Chief Secretary to the Treasury can agree for you to draw down the entire amount from the Wales Reserve. They didn’t agree during the pandemic but they did agree in this financial year because of the cost of living crisis, so there doesn’t seem to be any real rhyme or reason, so I think there are things we should do in future related to the fiscal framework which just make things clearer and don’t rely on how well disposed to devolution the CST of the day is, for example, how helpful the CST of the day is. We have the systems there and the systems work, regardless of personalities.

Counsel Inquiry: Thank you.

Moving on then from the Barnett guarantee and just on to one specific topic of policy, Eat Out to Help Out. In relation to that, was there any involvement by the Welsh Government in the Eat Out to Help Out decision?

Ms Rebecca Evans: So not to my knowledge, certainly not from a finance perspective, but then there isn’t really a particular finance angle to that, it’s more economic, and I’m sure that the UK Government would have had its own health advice on that as well.

I did see in the evidence that the Prime Minister has given to the Inquiry that Wales didn’t ask to opt out, which I thought was a curious thing to say, because there’s no mechanism within the devolution settlement for us to opt in or out of UK Government programmes and decisions. So that was a curious thing I think to say.

Devolution would look very different if we were able to opt in and out of choices that the UK Government makes, but that’s not devolution.

Counsel Inquiry: May I just ask, to the best of your knowledge, were any objections raised to the scheme by either you, with your finance hat on, or by the Welsh Government more generally?

Ms Rebecca Evans: Not to my knowledge. I do know it was, you know, a popular scheme amongst businesses in Wales, so you should recognise that as well. But, you know, this was a UK Government scheme, it’s for the UK Government to defend its scheme.

Counsel Inquiry: Thank you.

Moving now to firebreak, please, and the firebreak that took place in late October of 2020. The decision was taken in principle to institute a firebreak in a meeting that took place on 15 October 2020. There were a number of proposals that were considered within the meeting, but if I can just please call up the paper that was considered.

It’s at INQ000048876.

It’s entitled “Fire Break Options and Analysis”. You can see it, hopefully, on the screen in front of you.

Turning to page 2, if I may, one consideration in relevance to the firebreak, and you’ve alluded to it already, was that relating to the support for businesses and employees in the event that restrictions were reintroduced. What it states here is that:

“The scope to support businesses and employees in the event of national restrictions being reintroduced is largely dependent … [Document read] … impacted by national restrictions.”

We see as it goes – continues down the page, that there are references to a new scheme in relation to the enhanced job support scheme that was announced by the Chancellor on 9 October, dealing with wage costs, furlough costs, and so on and so forth.

That scheme was to commence on 1 November, so approximately two to three weeks later. One of the issues that was debated at length was the length of the firebreak. The minutes of the Cabinet meeting reflect that and they also record the fact that scientific advice was that a minimum of two weeks was required but three weeks was preferable. Then it speaks about balancing, essentially, the need to consider that the longer restrictions remain in place the greater the economic, financial and social impact on the wellbeing of individuals. But, as I say, nonetheless it was decided in principle that a circuit-breaker would be introduced. And that was on 15 October.

It was after that decision that there was then a series of correspondence between the First Minister and the Chancellor about income support for that firebreak. But with regard to the length of that firebreak, two or three weeks, that had already been decided prior to those discussions, hadn’t it, within that Cabinet meeting on 15 October?

Ms Rebecca Evans: So the purpose of the Cabinet meeting on 15 October was to take in principle a decision so that further work could be done and then we met the next week then to agree the substantive decision. And you’re absolutely right, it was the case that the advice was that there should be a minimum of two weeks. Three weeks would be preferable. But if it was two weeks then the advice should be stay home, if it was three weeks it could be stay local. So those were the considerations we were making at the time. But, you know, the longer the firebreak, as you said, the greater the economic harm as well, so we were very aware of those things.

And it’s worth remembering as well at this point we had large parts of Wales under those local restrictions as well, so I think that one of the challenges that we didn’t know at the time, I think, was that the Kent variant was starting to become more significant, and I think that that impacted on the success or otherwise of the firebreak, because although it did push back the pandemic by, I think it was three weeks, I understand, you know, some of that gain wasn’t as significant as we’d expected, because of the Kent variant being – you know, taking hold.

Lady Hallett: I think Ms Cecil’s question was: had the decision in principle been taken on 15 October for a two-week firebreak?

Ms Rebecca Evans: So in principle I think that’s the decision that we took. Because Swansea University modelling told us in that Cabinet paper on the 15th that two weeks would bring R down from 1.4 to 0.8, and the purpose of the firebreak would be to both bring R under 1 but then also to consider how we revised the national rules so that we could look into, you know, going into winter. But, as you’ve seen there, things were more difficult than we’d expected.

Ms Cecil: Correspondence was then only entered into with the UK Government and the Chancellor subsequent to that decision in principle; do you accept that, Minister?

Ms Rebecca Evans: Yeah, that seems to be the case, because, as you say, the letter went from the FM on the 16th.

Counsel Inquiry: Indeed. And that letter requested that the scheme, the new scheme, be brought forward to 23 October, to start essentially the same date as that firebreak. And without getting into the detail of it, there were otherwise two parallel schemes, potentially, running for that period.

Dealing with that very briefly, at the point on 15 October when the decision for a firebreak was taken, the Cabinet were already aware that there was an inability to bring the claims date forward from the commencement of 1 November to 23 October or earlier than that; that’s correct, isn’t it?

Ms Rebecca Evans: Can you repeat the question?

Counsel Inquiry: Yes, of course, sorry, it may have got a little bit muddled, let me deal with that again.

The new schemes that were being announced by the UK Government had been announced on 9 October, so prior to the Cabinet meeting on 15 October where the decision for the firebreak was undertaken.

Prior to the announcement of that new scheme on 9 October, the devolved administrations had been briefed on that scheme; that’s correct, isn’t it?

Ms Rebecca Evans: Right.

Counsel Inquiry: As part of that briefing, the devolved administrations had been told that that job support scheme could not be brought forward, owing to difficulties in HMRC’s delivery timelines; is that right?

Ms Rebecca Evans: Yes.

Counsel Inquiry: So that decision on 15 October was taken with the full knowledge that that JRS scheme could not be brought forward; that’s correct, isn’t it?

Ms Rebecca Evans: So the letter that we had in response from the Chancellor said that they couldn’t bring the enhanced JSS forward due to limitations in HMRC delivery times, but – that letter is undated from the Chancellor, but I’m assuming it was after the 16th.

Counsel Inquiry: Perhaps I can assist in relation to the letter.

If I can bring that up, it’s INQ000216555, please.

The response – this is the response of 19 October, if that helps. It’s the response to the letter, you can see, of 16 October from the First Minister. If we read down, it says:

“Unfortunately, as the Chief Secretary to the Treasury and I referenced in our briefing with the Devolved Administrations in … [Document read] … limitations in HMRC delivery timelines.”

Then what is being referenced there is the briefing that took place prior to the scheme being announced and the scheme was announced on 9 October.

Ms Rebecca Evans: Okay.

Counsel Inquiry: We’ve established that the devolved administrations, you’ve agreed, were given advance notification and briefed on that scheme, so the point that I’m putting to you is that when you took the decision on 15 October, you were already aware that those timelines could not be brought forward, and it was only after that that again you then entered into subsequent correspondence?

Ms Rebecca Evans: Well, I think there are questions to be asked of HMRC as to whether those timelines could be brought forward. Had they needed to be brought forward for England, I think HMRC could certainly have potentially pulled out the stops to do that. We don’t know, that’s not a question that I can answer, but I think that, you know, there’s absolutely no harm at all in doing what we should do, which was to press.

And the reason why we were asking for that scheme to be brought forward, because it was more generous, so it would have been better for employees and also employers, who wouldn’t have had to pay the contribution that they had to pay under the Coronavirus Job Retention Scheme, which is again why I found it curious that the Prime Minister has said in his written evidence to the Inquiry that the Welsh Government didn’t ask for the CJRS to be extended. Well, why would we? Because that was less generous. What we wanted was a better deal for businesses in Wales.

And in the end, you know, we did have to undertake the action that we did, despite the fact that it was unreasonable to ask employers to apply for two schemes for the same employee. But, you know, these were some of the – some of the difficulties. And it is what the FM talks about in terms of Treasury operating for England. Because when the UK Government decided then it would take action, then of course the CJRS was changed and there was a better package available.

Counsel Inquiry: I’ve got just one final question in relation to that, please, and that is simply: was it reasonable to expect the UK Government to be able to change the operation of that scheme in one week, decision made in principle on the 15th, when it could be brought into force effectively, the firebreak, on the 23rd?

Ms Rebecca Evans: Yes, I think that is absolutely reasonable, or at least to ask the UK Government to set out in a bit more detail what the operational problems are.

And one of the things I think is really interesting is that in the UK Government’s evidence they often talk about the level of consequential funding that we’d had at this point, as if that would help us, you know, provide a scheme of our own. So if HMRC can’t change the operational data within a week, how on earth is the Welsh Government going to have powers devolved to us to set up an entirely new operation and department to be able to do this kind of thing for ourselves? We need the UK Government to be working with us in order to protect businesses.

Ms Cecil: Thank you, Minister –

Lady Hallett: – all about the amount of money in the scheme. So the job retention scheme was going to go on until 31 October. So had you had a firebreak of two weeks, three weeks, four weeks, whatever, there would have been a job retention scheme in place?

Ms Rebecca Evans: There would, yes.

Lady Hallett: And it was all about how much money those in receipt of payments got either under the job retention scheme or under the new scheme , which was more generous?

Ms Rebecca Evans: Yes, the new scheme would have been more generous . But also the Coronavirus Job Retention Scheme required employer contributions, whereas the scheme which we were asking to be brought forward wouldn’t. So again, that would have been better –

Lady Hallett: But it’s not that the UK Government wasn’t providing financial support, it was simply that you wanted the new amount of money that would come under the new scheme?

Ms Rebecca Evans: That’s correct, and we also didn’t want businesses to have to apply twice for the same person. But also some of the worst affected sectors had staff who, because of the – who weren’t eligible for the Coronavirus Job Retention Scheme, because that required staff to have been furloughed before 30 June – and of course we’re talking about tourism, retail, hospitality businesses here, which were, you know, recruiting after that date, so there were potentially employees who wouldn’t have been eligible for support under that CJRS.

Ms Cecil: Thank you.

I’ve no further questions, Chair, but there are some questions on behalf of core participants.

Lady Hallett: There are.

Ms Heaven, I think – I think you’ve got a question that on my list originally was in the wrong – for the wrong witness. So I think – have you got three questions or two?

Ms Heaven: Only two now, I’ve reduced them down.

Lady Hallett: All right, thank you.

Questions From Ms Heaven

Ms Heaven: Thank you.

Good afternoon, Ms Evans, I represent Covid-19 Bereaved Families for Justice Cymru.

The first topic, please, is WhatsApps. So I’m just going to read to you paragraph 40 of your first witness statement, because you obviously did two witness statements. So your first witness statement said:

“I would use WhatsApp or text in my Trefnydd role during plenary to let ministers who were not in chamber know when they had … [Document read] … in a press conference, for example.”

You then – and that statement of course was signed true to the best of your knowledge and belief.

You then provided the Inquiry with a second statement. The first statement was 1 November 2023. Second statement was 15 December 2023, where you change your evidence to the Inquiry in relation to WhatsApps. And here at paragraph 10, I’ll read it again to you, you say that you:

“… used WhatsApps on a personal phone and these comprised messages to my Cabinet colleagues … [Document read] … with support.”

But that you didn’t make decision via informal messaging platforms.

Now, we’ve obviously – I don’t know if you were in the Inquiry when Eluned Morgan gave evidence but we did just look at some WhatsApps between yourself and Eluned Morgan where you’re very clearly asking for clarity on the rules and the guidance. I think we had one on static caravans, we had one on swimming lessons.

I just want to ask you about one or two more, please.

So if we could have INQ000303219, and the first one is at page 15.

So that will just pop up on your screen there. Is it up on your screen?

Ms Rebecca Evans: Yes.

Ms Heaven: It’s the top of the page. It’s another query from yourself:

“One more question … a socially distanced outdoor concert for 30 people… allowed or not allowed? I think not allowed, but don’t want to be wrong this as it is for charity. As you can see, I am clearing some casework!”

Then if we just turn to page 24, please, for the final one, and it’s at the very bottom. Thank you. Here we have yourself, and it’s 5 October 2020:

“For FM and VG mostly, but following up from Cabinet: Mick is v opposed to debating 16 and 17 tomorrow because it bypasses his [committee] and their opportunity to scrutinise. I do share his concerns about bypassing scrutiny …”

And then you go on, and then Mr Gething says this:

“I think we should say … [Document read] … earlier vote.”

Then he goes on. And then you say in response:

“I agree it’s for the legislature.”

Pausing there, would you agree with me that the first statement you gave to the Inquiry about your use of text messages was wrong and misleading, wasn’t it?

Ms Rebecca Evans: No, I don’t agree with that at all. I would say that I expanded on the evidence that I gave and I would also like it put on record that I have provided the Inquiry with extensive WhatsApp and text messages. What you’re seeing here has absolutely nothing to do with the Covid Inquiry.

Ms Heaven: Just let –

Ms Rebecca Evans: If I may. This relates to the legislature and I think it relates to votes at 16 and 17, so that has nothing to do –

Ms Heaven: You’re making government decisions –

Ms Rebecca Evans: – Covid-19 –

Ms Heaven: You’re making decisions here with Vaughan Gething, aren’t you, on WhatsApp. That’s what that shows. I know it’s not in relation to –

Ms Rebecca Evans: No, that is a discussion, and I say it’s for the legislature, it’s clearly not a matter for the executive, as in us as Welsh Government ministers.

Ms Heaven: But my question that I was – just so you understand what I was putting to you – I appreciate you’ve changed your evidence, you’ve provided a second statement, but what I was suggesting to you was that your first statement was not correct, because you were simply saying that you were only using WhatsApp to send messages to remind people that they had five minutes or of a personal nature. That’s what you said in your first statement. So I’m just simply asking you whether you agree that that first statement was incorrect in terms of what you were in fact using WhatsApp for. And I’ve taken you to some of them, for example you were clearly asking for clarity on regulations, but that doesn’t appear in your first statement, does it?

Ms Rebecca Evans: I expanded in my second statement. And I think what you see, really, is a conscientious member of the Senedd, so just to be clear, we have two completely separate jobs: we’re members of the Senedd and we’re also members of the Welsh Government. We have different offices, we have different staff, different email addresses, different diaries, the whole thing are separate. So I spent hours every day, on top of my government work, working as a member of the Senedd responding to queries from constituents, and what you see a lot of the time is what happens when you’ve got legislation and guidance which is being made at pace, making contact with reality and real people’s lives. And so we had all kinds of queries, so the example which was given previously, which related to swimming lessons, the last sentence wasn’t read out, and the next question was – so the constituent is telling me that swimming is on the curriculum. This should be treated as an education matter rather than a recreation matter.

Ms Heaven: Can I –

Ms Rebecca Evans: Those kind of questions I think are legitimate for a conscientious member of the Senedd to be following up.

Ms Heaven: Well, I think you’ve given your evidence. Can I just move on, finally, to one more topic, please, and it’s your views on face coverings. As you’re aware, Frank Atherton had certain views in relation to face coverings, and it would seem from the WhatsApps that you took a slightly different view. So if I can ask you about one, please.

It’s INQ000316403, and it’s page 45, please.

It’s just at the top, a few lines down, and Lee Waters introduces “Some polling on masks” – there we are – and you say as follows:

“Interesting. For me, one benefit of masks is that … [Document read] … though we can’t see it.”

If I can just ask you about one more entry, please, which is at page 46, and this is part way down, it says:

“Rebecca Evans: Def CP end as we are all … [Document read] … correspondence on this.”

And then if you see a little bit further down, Lesley Griffiths has said:

“Can see you Rebecca. Have … [Document read] … hear the answer.”

So, first of all, what correspondence were you getting, and why weren’t members of the public concerned? And also, were you trying to, on this occasion, or indeed others, put your views forward to Frank about the importance of face coverings?

Ms Rebecca Evans: So, again, this is me operating in my member of the Senedd role, which is separate, in the sense that I’m saying I get a lot of correspondence on it. I would have to go back and check through my records what correspondence I was receiving, but my own view is that – as I’ve said here, is that masks I thought were a really good visual reminder to people. Masks said to people as well that “I care about you”, because, as you remember, masks you wear to protect others rather than yourself, and I thought it was a good visual sign, really, that we could be looking after each other in the community. So I always was on the more cautious end of things when masks were concerned.

Ms Heaven: Okay.

Thank you very much, my Lady.

Thank you.

Lady Hallett: Thank you, Ms Heaven.

Mr Jacobs.

Questions From Mr Jacobs

Mr Jacobs: (Inaudible - microphone not on).

Lady Hallett: Is your microphone on, Mr Jacobs?

Mr Jacobs: – question again –

Lady Hallett: Okay.

Mr Jacobs: – maybe.

Lady Hallett: All right, I think yes, you had better, for the transcript.

Mr Jacobs: Yes.

Ms Evans, an issue on which the TUC and the Wales TUC called for action during the pandemic was for financial support for those needing to self-isolate. The concern was that those on lower incomes and in insecure work in particular would struggle to self-isolate if for two weeks of self-isolation they had no or little income, would struggle to pay for food and rent and so on.

Was that a concern shared by the Welsh Government?

Ms Rebecca Evans: Yes, it was.

Mr Jacobs: The concern in particular was that it particularly impacted lower income, higher risk sectors in which health outcomes were already poorer: those working in food processing plants, cleaners, porters, those in transport, social care and so on. Was that aspect of the concern one shared by the Welsh Government?

Ms Rebecca Evans: Yes.

Mr Jacobs: Ms Evans, the Welsh Government introduced the self-isolation support payment scheme, didn’t it?

Ms Rebecca Evans: It did, yes.

Mr Jacobs: And that was towards the end of October 2020; is that right?

Ms Rebecca Evans: Yes, correct.

Mr Jacobs: That was eight months after self-isolation was first introduced as a key NPI in response to the pandemic. Was that far too late?

Ms Rebecca Evans: I certainly would have wanted to have been able to do that – that sooner, and I’ve been thinking very much about this, and I think that one of the challenges we had at the time was that by the time we got to July we were facing – and you’ll see it in some of the documents I’ve shared with the Inquiry – that we were facing up to £1 billion to £1.5 billion of forecast pressures on the Welsh Government’s budget. That didn’t even include what we might need if there was a second lockdown or if you include extra pressures on Welsh Government resources, for example job losses leading to higher claims on various types of support.

So there were huge pressures at the time, and I remember looking recently at some documents where the – where Welsh Government officials were looking at that £600 million which was announced by the UK Government for infection control in care homes, and I think that that was one area where we were trying to get clarity as to whether or not that included consequential funding for the self-isolation within those care homes as well, so I think it is some –

a scheme that we definitely we would have wished to have

brought in earlier. I think that it demonstrates one of

the tough decisions we had to make, from a financial

perspective, in terms of being able to agree to

an open-ended financial commitment, which could be

significant, when you don’t have the clarity of the

budget available to service it.

Mr Jacobs: Ms Evans, clearly significant budgetary pressures, but

for those first eight months the additional sums spent

on financial support for those in work needing to

self-isolate was zero, wasn’t it? Whatever the

financial pressures, could it not have been more than


Ms Rebecca Evans: I think that, you know, were we to look back and be able

to do things again, you know, we could have looked at

that – we could have looked at that earlier, that’s

definitely fair to say.

From a financial management perspective, that would

have increased the risk even further. When I say,

you know, £1 billion of pressures and up to £1.5 billion

of forecast pressures, without even a second lockdown,

that is huge. And, you know –

Mr Jacobs: Yes.

Ms Rebecca Evans: – I think that that is really, you know, what we need

to be considering as well. So it does demonstrate some of the tough financial choices you have to make in these circumstances.

Mr Jacobs: Would the Barnett guarantee in July 2020 have been an opportunity to take some action on the issue of financial support for self-isolation?

Ms Rebecca Evans: Again, it … I’d go back and think about it. It could have been a point at which we could have done that. But even when we got to July and had that Barnett guarantee we were still well beyond the Barnett guarantee in terms of the funding that was required as well.

Mr Jacobs: Just finally, in the latter part of the pandemic you will recall, I’m sure, that the Welsh Government increased the £500 self-isolation support payment to £750. Can you help us with the rationale for that and was there concern in particular that even a £500 payment wasn’t sufficient to remove the financial barriers to self-isolation?

Ms Rebecca Evans: So it would have been my colleague, the minister with responsibility for social services at the time, who would have been responsible for asking us to increase that funding. But at that point affordability was different, so we had – you know, we had the Barnett guarantee, then we had uplifts to the Barnett guarantee to the point at which we were even carrying money over at the end of the financial year, so affordability is

unfortunately always one of the things that we have to

think about when we’re looking at supporting different


Mr Jacobs: I think I’m at my time, thank you very much.

Lady Hallett: Thank you, Mr Jacobs.

Thank you very much indeed, Ms Evans, very grateful

for your help.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: We shall adjourn now until 1.50.

(1.01 pm)

(The short adjournment)

(1.50 pm)

Mr Poole: Could I call Jeremy Miles, please.

Mr Jeremy Miles


Questions From Lead Counsel to the Inquiry for Module 2B

Lady Hallett: (Inaudible - microphone switch delay) – to

ask you to come and give evidence this week. As I said

to Mr Gething, I appreciate it’s not the best week.

Mr Poole: Could you start with giving us your full name,


Mr Jeremy Miles: My name is Jeremy Miles.

Lead 2B: Mr Miles, thank you for attending today and assisting

the Inquiry. You have provided a witness statement. We

can see that at INQ000389184. That was signed on 13 December last year. Are the contents of that witness statement true to the best of your knowledge and belief?

Mr Jeremy Miles: They are.

Lead 2B: In terms of your professional background, you studied law at Oxford before teaching law at Warsaw University and then practising as a solicitor in private practice. You were first elected to the Senedd for the Neath constituency in 2016, and you have been a member of a number of Senedd committees, including the Economy, Skills and Infrastructure Committee, the Culture and Welsh Language and Communications Committee, and the External Affairs Committee.

You were sworn in as Counsel General on 13 December 2017, and on the election of Mark Drakeford as Welsh Labour leader and First Minister in December 2018, you retained the role of Counsel General and assumed the new post of Brexit minister, and I understand that post was renamed a year later as Minister for European Transition, and then in 2021 you were re-elected as a Member of the Senedd for Neath, and in May of that year you were appointed as Minister for Education and the Welsh language.

Is all of that right?

Mr Jeremy Miles: It is correct.

Lead 2B: Start, if I may, by asking you some questions, then, about the role of Counsel General. And in fact before we go to that, perhaps some questions about your use of informal methods of communication, so WhatsApp and text messages.

You deal with this at paragraph 25 of your witness statement, and you say there that while the Welsh Government does not permit the use of WhatsApp on Welsh Government mobile phones, you used your personal mobile phone to send WhatsApp messages, and we have seen – the Inquiry has seen exchanges between yourself and Welsh ministers on a Welsh minister WhatsApp group and other individual exchanges of WhatsApps between other officials, for example, Jane Hutt, Helen Lentle.

Dame Shan Morgan was taken to a number of Welsh Government policies concerning the use of informal methods of communication, and also the importance of ensuring that any messages concerning Welsh Government business are maintained on the corporate record by, for example, uploading to iShare.

I suppose the first question: do you accept that it was wrong to have used WhatsApp on your personal mobile phone to discuss government business?

Mr Jeremy Miles: Well, the Welsh Government’s policy is not to allow WhatsApp to be downloaded onto Welsh Government phones, so, as you say, in my case, that was on my personal phone, my private phone, not my Senedd phone. So I was having colleagues messaging me on my personal phone effectively.

I’m not aware of the guidance I think you’re referring to – well, I certainly wasn’t previous to the hearing, the Inquiry – which was the guidance from 2009, I believe. So I was not aware at the time that we were exchanging messages that that was inappropriate or contrary to that guidance, though obviously I’ve seen that guidance subsequently.

Lead 2B: I think you make the distinction that we’ve heard a number of ministers and officials make, that you say decisions were not taken by WhatsApp. The Inquiry has, however, seen a number of exchanges involving you and ministerial colleagues that discuss Welsh Government decisions and also air concerns and confusion, perhaps, about certain policies and certain decisions that were taken during the pandemic.

Do you accept that those discussions should be retained and recorded for the corporate record?

Mr Jeremy Miles: Well, I can see that now. At the time I regarded that as chat between work colleagues and not the sort of content which I would regard as being relevant to decision-making.

I understand, of course, in the light of the Inquiry’s considerations, that there’s a broader – there’s a broader net, if you like, which captures all of that communication, but that certainly wasn’t my appreciation at the time.

Lead 2B: You say, also in paragraph 25 of your witness statement, that from time to time, I think prior to but also during the pandemic, you would manually delete or clear out messages, and that from an unknown point in time you had automatic deletion turned on for messages, which is also known as disappearing messages.

The Inquiry understands that disappearing messages could be enabled from November 2020. Are you able to assist, would that have been when you enabled disappearing messages?

Mr Jeremy Miles: I’m afraid I don’t know the answer to that question specifically. The context for this, though, is it’s my personal phone and I’d had my phone stolen in 2017 and was sensitive to having on my phone anything which somebody picking up the private phone of a public figure might be interested to read, so whether that was work colleagues’ messages or personal messages, I was in the – my practice was to delete that.

Lead 2B: Given your legal background and legal training, did it not perhaps occur to you that the events of a pandemic may one day be the subject of an Inquiry such as this, which would require full disclosure, including disclosure of such messages even on a personal mobile phone?

Mr Jeremy Miles: Well, I suppose I regarded the kind of things that were being talked about as not being, you know, public records in that sense, they were chats between work colleagues. I obviously know in light of the discussions in this Inquiry that was the wrong assumption to make, but that was my understanding at the time.

Lead 2B: Mr Gething told the Inquiry yesterday that it was a real embarrassment for him not to have access to his WhatsApps during the period that he was Minister for Health and Social Services. Is it an embarrassment to you to have deleted messages and turned on disappearing messages during the pandemic?

Mr Jeremy Miles: Well, certainly in light of subsequent events I wish I had kept them, but I just want to say the reason that I was in the practice of deleting was, having had my phone stolen a few years before, I was particularly sensitive to material being on there which, you know, somebody stealing or finding a phone in the gym or whatever might be interested in. So that’s the context for it.

Lead 2B: Mr Miles, if I turn then to your role as Counsel General, as I understand it, Counsel General is the principal legal adviser to the Welsh Government. As well as providing legal advice to the Welsh Government, the Counsel General has a role to play in: first, legislative drafting; second, protecting the devolution settlement; and, third, generally overseeing the legal aspects of government operations and ensuring compliance with the law. Is that a fair summary?

Mr Jeremy Miles: It is indeed yes.

Lead 2B: Although not a Welsh minister, as Counsel General you were a member of the Welsh Government and, as such, participated in Cabinet meetings, I understand, at the invitation of the First Minister; is that right?

Mr Jeremy Miles: Yes, it was a standing invitation under the current First Minister and, certainly in my time, under the previous First Minister as well.

Lead 2B: You say at paragraph 9 of your witness statement:

“Collective possibility applies to the Counsel General save that there are certain functions in respect of which the Ministerial Code expressly exempts the Counsel General’s functions so that he can act independently.”

That reference again, as I understand it, to acting independently of the Welsh Government, and those exemptions that are referred to there, the Ministerial Code relates to instances where you, as Counsel General, might consider it appropriate, and I’m quoting:

“… for the protection of or promotion of the public interest to defend or appear in legal proceedings and also when scrutinising Bills.”

Is that right?

Mr Jeremy Miles: Yes, it is. I haven’t personally appeared in legal proceedings but one of the key roles of the Counsel General, in the context of legislation, is to form a view on whether the legislation proposed by the government is, for example, within our legal powers, and one of the powers of the Counsel General is to refer that matter to the Supreme Court for determination. So that element of independence from the government, for example, in that context would be important.

Lead 2B: So save for that function when you’re scrutinising Bills, collective responsibility applies to you and you are bound by the Ministerial Code; is that right?

Mr Jeremy Miles: For all intents and purposes, yes.

Lead 2B: Is it right to say that legal advice that you provided to the Welsh Government is covered by legal professional privilege; that’s right?

Mr Jeremy Miles: It is, yes.

Lead 2B: However, we should be clear that for the purposes of this Inquiry the Welsh Government and Welsh ministers have agreed to provide the Inquiry with privileged material; again that’s right?

Mr Jeremy Miles: We have, yes.

Lead 2B: Now, you liaised closely during your time as Counsel General with Helen Lentle, who was director of Legal Services. Can you just briefly outline to the Inquiry the role that Legal Services performed during the pandemic?

Mr Jeremy Miles: Certainly. Well, I think it’s probably useful as context for the discussion generally to know that there isn’t a separate office of the Counsel General, so there isn’t – when I became Counsel General I considered establishing that but I couldn’t really justify, on the number of lawyers that we have at our disposal, running two different infrastructures, if you like.

So each of the government ministers has the ability to draw on a team of lawyers who are expert in education, local government, environmental law, and they all report in to Helen Lentle, who is the director of Legal Services for the Welsh Government, and therefore the most senior public lawyer providing advice to the government, and it was my practice to meet with her regularly so that we would discuss legal issues, either legal issues which were coming up across the government’s business generally or specifically in relation to Cabinet meetings, Cabinet papers, but also legislation. So I would have that periodic regular discussion so that I was able to shape the advice, test the advice, discuss what was – what I felt were the priorities for us, so I would have that relationship with Helen Lentle and I would have an equivalent relationship with the First Legislative Counsel, Dylan Hughes, in relation to the legislative programme.

Lead 2B: Am I right that the Office of the Legislative Counsel, that sits within the directorate – within the office of the First Minister; is that –

Mr Jeremy Miles: It does, yes.

Lead 2B: As you say, Dylan Hughes, he was Welsh First Legislative Counsel, and you interacted with him alongside Helen Lentle during the pandemic?

Mr Jeremy Miles: Indeed. I mean, for most days, during the most intense period of activity, we would meet, either the three of us or, you know, myself with one of them, certainly most days.

Lead 2B: The Inquiry has heard evidence already about the ministerial advice process, so namely the process by which civil servants and government officials would provide legal policy and advice to Welsh ministers. I just want to understand the role that you played in that process, obviously specifically during the pandemic. Would you have had sight of all ministerial advices produced during the pandemic?

Mr Jeremy Miles: Well, there are two capacities in which I operate here – or three probably, actually. So, firstly, the Counsel General’s office is a mandatory copy on all ministerial advices across the government. You know, many of those are not controversial and so I wouldn’t expect to see those, but of that where I’m simply a mandatory copy, I would probably see about 60% of those, and I would be able to comment on them in the usual way.

There’s another category in which I was specifically copied under the name of the deciding minister, so you will have seen a number of examples where the First Minister is taking a decision and I am copied on that. So I would obviously have seen all of those.

And then when there is legal advice of any significance or materiality in the ministerial advice – and during the Covid period obviously that was very often the case – I would either have specifically cleared the legal advice before it appeared in the memorandum – in the ministerial advice or it was based on another document which I had approved or was sufficiently close to the discussions that I’d had with the legal advisers that I was content for that to proceed.

Lead 2B: I understand.

Presumably there were instances during the pandemic when Welsh ministers came to you directly for advice; is that right?

Mr Jeremy Miles: Well, not very often. I mean, occasionally I would have someone saying “I’ve had this advice, do you agree with it?”, perhaps. “Do you think there’s another way of dealing with this?” Maybe asking if the advice was perhaps too cautious. And my practice was always to listen – if I was able to confirm that I agreed with the advice, obviously I would do that, but if there was something to take away and consider, I would often do that but do that through the Legal Services team, and so I didn’t want to establish a separate legal channel, if you like. It’s obviously important that that’s all consistent. So the response to that discussion would then come through Legal Services.

Lead 2B: As regards your role in Cabinet, you describe this in your witness statement as being twofold. You say, first, it was explaining “in simple and practical terms what the legal advice was and why, and [also] the implications … for the matters under consideration”. And second, playing “a full part in the substantive discussion and decision making process”.

Did you ever find it difficult during the pandemic to fulfil those two roles? So on the one hand being the provider of legal advice but on the other acting as a collective decision-maker?

Mr Jeremy Miles: Well, I think that my role in providing and explaining the legal advice in Cabinet during the Covid period, from recollection, at the start of the Covid period, when the Cabinet itself was developing an understanding of the basis on which regulations should be reviewed, for example, much of the work I did to explain to colleagues what the legal structure, legal requirements were, happened then.

I think over time the Cabinet obviously developed its own understanding of that, and had the legal advice in front of it generally in any event, and so I would participate in that broader discussion. So I was careful to take the two things separately.

But as we went through the – into the, you know, the months of Covid, there was more scope for that broader discussion, because I felt that the legal principles were understood by colleagues.

Lead 2B: I want to change topic and ask you now about some of the input that you had into specific decisions that were taken in the period February to March 2020 and start, if I may, with the Coronavirus Bill.

You say at paragraph 83 of your witness statement, you explain that:

“On 24 February 2020, [you] were asked to Chair a Cabinet Sub-Committee on the Welsh Government’s legislative programme in the First Minister’s absence.”

And you say:

“I recall that there was an item on the agenda about the Coronavirus Bill … being prepared by the UK Government.”

But that you were “not directly involved in the Bill at that point”. Then you say:

“… (I was to become involved soon after), but I was told by lawyers in Welsh Government Legal Services that at that point we had good input into the preparation of that legislation.”

I just want to understand, what involvement did you have in respect of the Coronavirus Bill?

Mr Jeremy Miles: At that point I was aware that we’d had the first print of the Bill I think a week before and I was aware that Helen Lentle was in regular discussion, I think, with the First Minister and the health minister about the contents of the Bill, and – at that point that was my understanding, and that was gleaned through the regular meetings and discussions that I had with Helen Lentle as part of my role. You know, after that period I think the intensity of working on the Bill increased in any event, and that was developed very rapidly through March and there were a number of issues on which I was engaged during that period in relation to some aspects of the Bill were retrospective, some aspects of it were areas in which we were able to persuade the UK Government to change their position, so some of the education provisions, there were provisions in relation to protection of tenancies, in relation to financial support. So there were a number of areas in which I had been involved subsequently, but at that point I was aware of it – of the work that lawyers were doing through my regular discussions with Helen Lentle.

Lead 2B: Would you say generally that the Welsh Government had good input into the final product of the Coronavirus Bill that then became the Coronavirus Act?

Mr Jeremy Miles: Yes, it happened very quickly but I think it was an example of good cross-government working.

There was – inevitably perhaps when you’re working to that kind of constrained timetable set by the Parliamentary timetable in Westminster, it wasn’t particularly convenient for our Senedd timetable, but, you know, in these circumstances, one accommodates that, naturally. But there were, you know, many examples – I think of policy instructions coming through and then having to be very rapidly shared amongst policy – ministerial colleagues with policy responsibilities for their inputs, and … but I do think there was good joint working and I do think that the input of Welsh Government lawyers helped shape the Bill and improve the Bill as well.

Lead 2B: I want to ask you next about school closures. The Inquiry’s heard that on 18 March 2020, the then education minister, Kirsty Williams, issued a statement closing schools for face-to-face learning. In her witness statement, so Kirsty Williams’ witness statement – which we have at INQ000362237, we’re looking at paragraph 99 – it says:

“The Welsh Ministers do not run individual schools in Wales … and I did not have the power to direct schools to close … [Document read] … to implement that policy.”

If we could just have a look, please, at the actual statement, so this is the announcement that Kirsty Williams gave on 18 March.

I think it’s INQ000349180.

I think I’m looking at the – yes, so the top of that page, starting “Today”, it says:

“Today, I can announce we are bringing … [Document read] … at the latest on 20 March …”

It then goes on to say – thank you – second paragraph down:

“Today’s decision will help … [Document read] … ahead of the early break.”

Would you agree that that doesn’t sound like a policy announcement advising that schools should close, that sounds more like a mandatory directive, and the language was “schools across Wales will close for the statutory provision of education”?

Mr Jeremy Miles: Well, I suppose I bring some experience of hindsight on this as well, having been – being education minister at the moment. The statement in Kirsty’s statement is correct. I think what the press announcement is doing is seeking to give a very clear sense of direction to the education system generally. The context for this was, from memory, that schools had, if you like, started to close themselves. This was happening right across Wales. And so my understanding of the purpose of the statement is to shape that, give a sense of direction and a sense of order to that, and so I think the language needs to be seen in that context.

Lead 2B: Now, you say in your witness statement, it’s paragraph 102, we don’t need to go to it, that you were not asked to advise on this decision to close schools and nor were Legal Services. That’s right, isn’t it?

Mr Jeremy Miles: It is.

Lead 2B: Now, although we appreciate matters were moving very quickly at this point in mid-March, Ms Williams says in her witness statement that officials were already planning for school closures and the impact on the examination system on 4 March. Are you surprised that a decision was taken on 18 March to close schools without any legal advice?

Mr Jeremy Miles: Well, I would have preferred for there to have been a legal advice taken in relation to that. There had been a Cabinet on the – a couple of days before where it didn’t feel like that decision was imminent, but I think, from memory, the position changed very rapidly in the intervening period. But I certainly think it would have been preferable for there to have been legal advice even though there wasn’t a formal exercise of a legal power.

Lead 2B: If we can, please, have another look at a separate passage of Ms Williams’ witness statement.

It’s paragraph 108, thank you.

It says here:

“On 17 and 18 March 2020, matters were moving so quickly that there was no time for officials to prepare a formal … [Document read] … sent to me on 23 March 2020 …”

So, is it fair to say that the advice that was provided was retrospective?

Mr Jeremy Miles: I think from the chronology as set out in Kirsty Williams’ statement that’s the inevitable conclusion.

Lead 2B: If we could have a look at that ministerial advice, please, it’s INQ000145342. If we can turn – it looks like quite a long document, so if we can turn to – sorry, paragraph 32 but page 7, I’m grateful. It states here:

“It should also be noted that the [Department of Education] are also experiencing a similar situation following Wednesday’s announcement. It is important to note schools have not been close, they have been repurposed at a time of national crisis … [Document read] … schools and others will respond positively to this guidance.”

And perhaps the next paragraph, please:

“We do [not] intend to take a power in the COVID-19 Bill that would give us the power to … [Document read] … scale and urgency of the emergency …”

Then if we can skip down to paragraph 37 on that same page, confirming here:

“No legal advice was sought before these statements … were released.”

Then the next paragraph, paragraph 38:

“The power to vary the dates of school holidays is a local authority or school governing body power, not a Welsh Ministers power. The relevant power … [Document read] … but Legal Services are not aware that such consultation had taken place.”

It is fair to say we know, don’t we, that local authorities and governing bodies had not been consulted prior to the announcement on 18 March?

Mr Jeremy Miles: I can’t myself tell you that I know first-hand what level of consultation had taken place.

Lead 2B: If we – same document, ministerial advice but over the page, paragraph 40, please:

“There are temporary school closure powers … [Document read] … not provide legal cover to the Minister’s announcements/statements.”

Was this a ministerial advice that you saw at the time or were you asked to contribute to this ministerial advice?

Mr Jeremy Miles: I’m trying to recollect. I think I will have seen it before it was sent to the minister, but I can’t remember specifically, I’m afraid.

Lead 2B: So it appears, from what is set out here, that the Welsh Government did not have the power to close schools on 18 March; is that right?

Mr Jeremy Miles: Yes, and what the minister is doing is giving a direction to local authorities – I shouldn’t use the term “direction” – but essentially sent, gave a clear statement of policy about what the government wishes to see and I think, from recollection, that that was welcomed because, as I was saying earlier, schools were taking their own decisions to close.

So giving it a sense of purpose and a sense that this was happening on a national basis I think was part of the rationale for that. But, as I say, there was not a power of the minister to close the schools directly but, notwithstanding that, I think it would have been helpful for legal advice to have been taken.

Lead 2B: I want to turn to mass gatherings and the legal advice that you gave about mass gatherings next, if I may. You deal with this at paragraph 94 of your witness statement. We don’t need to bring it up. Let me just read to you what you say. You say:

“By 13 March 2020, concerns had been raised about public events attended by large numbers of people, including sporting fixtures.”


“… that day, I asked my Private Office to email Helen Lentle for advice as to whether the Senedd had legislative competence to limit mass gatherings.”

We can see this request. It was 13 March. It’s INQ000376453. If we go to the bottom of page 2, we see there:

“Counsel General has asked if we have any competence in relation to limiting mass gatherings due to coronavirus.”

Then if we go up to the top, we can see the advice that comes back – thank you, page 1.

So this is sent on behalf of Helen Lentle. Perhaps if I can just summarise it and then you can tell me if I’ve got it right. The advice was that any legislation passed by the Senedd to restrict mass gatherings was likely to engage reserved matters, whereas the draft Coronavirus Bill would contain powers for the Welsh ministers to regulate mass gatherings and exercising powers under the Bill was preferable in the interests of being able to act coherently and comprehensively because it wouldn’t raise any question about legislative comments. Is that a fair summary of the advice?

Mr Jeremy Miles: I think it is.

Lead 2B: Was that advice, so Helen Lentle’s advice, conveyed to the First Minister and Welsh ministers, do you know?

Mr Jeremy Miles: I don’t know.

Lead 2B: On 20 March, the First Minister requested advice on the legal powers that Welsh ministers had to announce and enforce a lockdown in Wales.

And, again, if we can just look at the request, it’s INQ000336318.

If we can have a look at the bottom email – yes, page 4. So this is the request that is made to Helen Lentle. It refers to:

“… a meeting yesterday, attended by the First Minister, Permanent Secretary, and several Welsh Ministers, the question of lockdown legal powers [was focusing then] on the Civil Contingencies Act … [refers] to emergency powers for public health crises.”

And states:

“However, we need clarity on what relevant powers Welsh ministers would have in this scenario.”

And a response, we see that in bold, on that email, a response is requested at the latest 3 pm the same day. So that email sent at 13.27, so it’s an extremely quick turnaround being requested. And we in fact see, if we go up the page to page 2 – as the first line says – so this is now 14.51. As the first line says:

“… below is a short summary of the position with regard to the current and anticipated powers.”

Again, perhaps if I just summarise the advice and you can confirm if I’ve got it right, so the powers under the Civil Contingencies Act are devolved and therefore not exercisable by Welsh ministers. Powers under the Public Health Act can be used to keep an individual or group of people in isolation, if necessary or proportionate to reduce the risk of infection, but the advice was these powers could not be applied to all citizens and therefore could not be used to lock down the whole of Wales. And then it went on to say that powers under the Coronavirus Bill could be used to restrict the movement of people if they’re potentially infectious and could also be used to direct the closure of premises and restrict gatherings; again, is that a fair summary of the advice?

Mr Jeremy Miles: Well, the advice is that the powers in the Civil Contingencies Act are not devolved. They’re reserved to UK Government ministers and therefore are not available to Welsh ministers.

Lead 2B: Indeed.

Mr Jeremy Miles: And in relation to the public health provisions, I read the email to say that the existing regulations aren’t sufficiently broad to capture the intended purpose.

Lady Hallett: I think you omitted a “not” in your question.

Mr Poole: I apologise. Thank you for clarifying.

Lady Hallett: You said they are devolved.

Mr Poole: No, sorry. That’s entirely my mistake, so thank you for correcting me.

Mr Jeremy Miles: The assumption at this point was that the civil contingencies legislation would be the relevant legislation effectively.

Lead 2B: Absolutely. And then that email chain was forwarded on to you and I think we see at the top of the page we’ve still got up “Helpful thanks”.

Again, this advice presumably was passed on to the First Minister?

Mr Jeremy Miles: I think his office is copied in on the response from Legal Services.

Lead 2B: Is that right? Certainly his senior special adviser is, Jane Runeckles.

Mr Jeremy Miles: And the head of his office –

Lead 2B: Yes. Were you asked to advise on the powers available to Welsh ministers to implement a national lockdown?

Mr Jeremy Miles: No, not beyond the advice, not beyond the commission that had gone directly to Legal Services.

Lead 2B: That advice that we’ve just seen, that we’ve just summarised, did you have input into that or was that a product of Legal Services?

Mr Jeremy Miles: That was a product of Legal Services, but I was not surprised to see the advice, because the assumption was that the Civil Contingencies Act would be relevant, although by the time we got to the end of the day the matters had moved on because of the meeting at COBR.

Lead 2B: Because, as we know, public health powers were in fact used by Welsh ministers –

Mr Jeremy Miles: They were.

Lead 2B: – to close restaurants, pubs, bars, other facilities, and also to then implement the national lockdown on 23 March.

So just casting your mind back to those two pieces of advice we’ve just been looking at, so first on 13 March that dealt with mass gatherings and then on 20 March dealing with generally lockdown, was it wrong to advise against using public health powers to limit mass gatherings and implement a lockdown?

Mr Jeremy Miles: In relation to the – to both events? Well, I think in practice in relation to mass gatherings, although I think that was on the Friday, the advice came through. On the Monday there was still the advice from the UK Government was that they were not recommending the closure – cancelling of mass gatherings. I think by the Friday, effectively on the 20th, we’d used the public health legislation, you know, to have substantially that effect, certainly in relation to certain premises.

Lead 2B: But the advice we’ve just looked at on 20 March was that, when addressing this point about public health powers, that they could be used to keep an individual in isolation but those powers could not be applied to all citizens and therefore could not be used to lock down the whole of Wales, and yet three days later those are the powers that are used to implement a national lockdown.

I suppose my question is this: can you answer definitively whether the Welsh Government had the legal powers to impose a lockdown ahead of the UK Government?

Mr Jeremy Miles: Well, I think the point in the letter, in the email of the 20th is that it’s not talking about public health legislation more generally, it’s referring to the Health Protection Coronavirus Wales Regulations that had been made. That’s my understanding. So it’s not making, I think, the broader point.

But it’s certainly the case that we had the powers in order to bring about the lockdown. We exercised those through the public health legislation of 1984, and indeed used those on the Monday ahead of the UK Government using equivalent powers when we did that to close caravan parks and footpaths.

Lead 2B: If we can have a look, please, at your witness statement, it’s INQ000389184, looking at paragraph 115, you say here:

“The Regulations I have described above were all made under the Public Health (Control of Diseases) Act 1984, and not the Civil Contingencies Act 2004 …”

You say:

“My understanding is that the decision to use public health legislation as the legal framework instead of the CCA was taken by the UK Government at COBR on 20 March 2020. The decision whether to use the CCA or not was not a decision for the Welsh Ministers.”

You then go on to say:

“As far as I am aware, the Welsh Government was never asked for our view on this legislative choice. I was certainly never consulted by the UK Government about it.”

Now, you make the point about a lack of consultation there. As Counsel General for Wales, would you have expected the UK Government to involve you or at least consult with you about the choice of legislation to respond to the pandemic?

Mr Jeremy Miles: I think that would have been preferable, but what was happening I think on the Friday, which is when I understand the decision was taken, was that there was a discussion at COBR. I wasn’t in attendance. I think that is because of the way in which COBR is convened, it’s convened at the direction of the UK Government and there’s a very limited number of invitees and I wasn’t amongst those who were invited to it.

As I say, our understanding was that the civil contingencies legislation would be the legislation that was going to be used, but during the course of that day, on the back of the conversations which took place at COBR, as I understand it, the UK Government decided to use the public health legislation. And I think if you were to look back at that decision and undertake a legal analysis, I think that makes sense because, you know, there are specific powers in the public health legislation, and indeed we were seeking to supplement that in the Coronavirus Bill which would provide even more specific powers, and what we know is the civil contingencies legislation is available in the absence of specific power, so, you know, where we have those powers it’s preferable to use them.

Lead 2B: The Inquiry has heard some evidence from in particular UK Government ministers and former ministers in Module 2 that they in fact regret the decision not to use the Civil Contingencies Act to respond to the pandemic.

In the event of a future pandemic, would you advocate in favour or against the use of the Civil Contingencies Act?

Mr Jeremy Miles: Well, I don’t know if they can, you know, if the analysis as I set out is correct that where there are more specific powers then the Act isn’t available, I think that would be challenging for them to use that, even if they wished to. But I think there is a democratic question here, which is that health is devolved to Wales, people of Wales would look to the Welsh Government to respond in relation to a health pandemic, and so it is preferable for those decisions to be in the hands of Welsh ministers. But there’s also a practical application to this question as well, which is whoever’s exercising the powers, there are a set of operational relationships which are critical to being able to deliver the outcomes which those powers are there to bring about, and I don’t think that is possible in the context of a UK Government, you know, looking at using civil contingencies legislation more generally and Welsh ministers having those powers.

Now, that’s a view which I think I have in hindsight, in a sense, having gone through the pandemic and seen how in practice this could operate, and then you ask yourself the question: well, if the assumption going into this was that the civil contingencies legislation would be the right way forward, it isn’t clear to me now how practically that could have been delivered.

Lead 2B: I understand.

Mr Miles, changing topic and dealing next, if I can, with the – first, the co-ordination dashboard and then the data monitor.

We’ve seen minutes of a Cabinet meeting of 6 April that reflects a number of new workstreams that the First Minister asked you to take the lead on. Don’t need to display those minutes.

The First Minister is recorded as referring to a paper on Covid-19 policy coordination, and informing ministers that he had asked you to provide the overarching ministerial lead on the delivery of the workstreams, and you also confirm in your witness statement that the First Minister – I think, in your words – asked you to provide the overarching ministerial lead on the delivery of cross-cutting workstreams.

Briefly unpack that for us: what does that actually mean in practice?

Mr Jeremy Miles: Well, as well as being Counsel General, I was also Minister for European Transition at this time, and had been required to work in a very cross-government way in order to prepare for the prospect of leaving the European Union, and so there were significant projects happening right across the government which required collaboration between ministers in order to deliver the outcomes that we wanted.

So I think with that context in mind, the First Minister was asking me to identify with colleagues where there were projects which engaged more than one portfolio and which then required some cross-government co-ordination effectively, so each minister had their own policy responsibilities, a number of the things we were trying to achieve engaged many ministers, so in relation to the provision of food boxes to those who were shielded or who were isolated, that engaged, you know, five or six different portfolios, and the First Minister was asking me to do two things: first, provide that overview, working with officials, on what those joint projects were, giving Cabinet an understanding of where progress was happening well and where it was challenging, and then there were a handful of particular projects where it was, I think, helpful to have a member of the Cabinet who did not have his own policy portfolio and was therefore able to bring colleagues together to resolve some particular challenges, and there were two or three of those in particular that he asked me to lead on, which I did. That entailed, you know, a number of meetings over a period of weeks with colleagues to identify the problem, identify what the solutions might be and develop a plan to do that, and then the responsibilities would be portfolio ministers’ responsibilities to make the contributions they needed to make.

Lead 2B: And the co-ordination dashboard – I’m not going to ask for it to be displayed, it’s a rather unwieldy spreadsheet, but I’ll give the reference just so that we have it on the record, it’s INQ000048968.

Can you briefly explain to us, though, what the dashboard was and how it was used in decision-making?

Mr Jeremy Miles: Certainly. So I think the first one was presented on 6 April at the meeting that you’ve referred to, and it was the product of officials across the government compiling this record of where all this activity sat, and it ranged across the entire work of the government.

So the dashboard was presented weekly, I think, for many eight weeks until things had stabilised in terms of the delivery of those projects, and then was presented on a more ad hoc basis after that, and it enabled government colleagues to have a sense of whether there were any gaps in the work that needed to be done, where the projects which we had agreed to do were, you know, on track, where there needed to be additional focus. So it was RAG rated to tell colleagues whether it was in the red, amber or green category, that would be capable of being challenged, and then each time it was presented there would be a short paper that demonstrated whether, you know, things were moving from green to red or red to amber on the key project.

So it was a way for colleagues rapidly to get a sense of where the cross-government activity was, and to bring focus to bear to moving things forward when that was challenging.

Lead 2B: And in terms of this being presented and challenges being able to be made, was this at Cabinet, was this at core Covid meetings, when was this –

Mr Jeremy Miles: This was a Cabinet paper, so it was circulated in advance to colleagues with that covering paper.

Lead 2B: The data monitor next.

Again, those minutes that I’ve referred to a moment ago, the 6 April minutes, as well as referring to this co-ordination dashboard you’ve just explained, they also refer to a new data monitor which sat alongside the co-ordination dashboard. Can you tell us what that was and how that fed into decision-making as well?

Mr Jeremy Miles: So this was a simple mechanism for providing Cabinet with data on performance against a range of objectives across the government. So my own role in relation to it was simply to put it on the agenda for Cabinet. I had no, if you like, ownership of it. It was a product of the team that we have in the Welsh Government who is there to collate data, which touched on everything from number of deaths to number of food boxes that had been commissioned, to the number of journeys on the public rail network. It covered, you know, the entirety, if you like, of Welsh life in the context of Covid so that colleagues could have a shared understanding of the picture right across Wales.

Lead 2B: I think perhaps it will assist to have an example brought up. It’s INQ000048827. So this is an example from 20 April. If we could have a look at the second page, please.

So this provides a summary of all the data that’s then grouped into six categories. You can see: “Cases & Deaths”, “Attitudes & Behaviours”, Health & Social Care”, “Economy & Labour Market”, “Shielded & Vulnerable People” and “Public Services”.

So if one wanted more information about one of those subjects then – say, for example, shielding and vulnerable people – we could navigate to the specific section dealing with that –

Mr Jeremy Miles: Yes.

Lead 2B: – and there you see more detailed data and analysis; is that right?

Mr Jeremy Miles: Yes, absolutely.

Lead 2B: Again, this accompanied the co-ordination dashboard, so this would be presented in advance of a Cabinet meeting for Cabinet discussion?

Mr Jeremy Miles: Yes.

Lead 2B: I’m grateful.

Changing topic, then, and moving to 21-day review process and your input into that.

The First Minister asked you, as I understand it, to co-ordinate the formal review of regulations; that’s right, isn’t it?

Mr Jeremy Miles: It is.

Lead 2B: Now, Thomas Smithson, who is a senior civil servant, he was asked to carry out the first 21-day review, and he’s provided a witness statement to the Inquiry. Perhaps if we can just pull that up, it’s INQ000282461, and it’s paragraph 10 in particular. Mr Smithson says here:

“The first substantive piece of work I was asked to undertake was the first review of … regulations. I did not have any team, and this became my principal task, drawing on others’ views and evidence. There was no framework or process established, with my approach guided by legal advice on the obligations in the regulations, and public health and scientific advice on the progression of the pandemic.”

Now, the Inquiry heard evidence last week from Reg Kilpatrick, he told the Inquiry that this work was undertaken under the supervision of Debra Carter, he confirmed that Mr Smithson didn’t have a team beneath him, but his evidence was that Mr Smithson had a group of people around him.

Now, my question is this: looking at what is said there about the lack of a framework or process, is that fair? Is that something you recognise, that there wasn’t at this stage, the first 21-day review, a framework or process in place?

Mr Jeremy Miles: Well, certainly from my – for the 6 April Cabinet meeting, which is the one that you were talking about earlier where Cabinet agreed that I would co-ordinate the review, through to the review happening on the 16th, although the MA went to the First Minister on the 14th, we’re talking about less than ten days for that, so I think it is fair to say that the resource which we were able to bring to bear later on wasn’t in place in that first cycle, but that was not surprising. The whole point was to establish that process, that cycle of reviews, and it was clear in that first review that we were not going to be in a position to change the regulations in any substantive way because the data wasn’t telling us anything different from the position at which we’d gone into lockdown originally, as I recall.

So my task in relation to this was to make sure that we had the legal advice being fed into the system, I was I think asked to co-ordinate the work because, as a law officer, this was something which the regulations required and the First Minister I think made the obvious link between the two responsibilities.

So providing legal advice into that cycle so that the review could take place in accordance with the regulations was critical, but then we also had, you know, meetings with the First Minister, with the permanent secretary and others where it was about mapping out what the work needed to look like, and so there were a number of – there was a meeting on the 14th, I think, the day the First Minister was sent the ministerial advice where, you know, I suggested we needed to look at the Easter review, which is the one that we were doing at the time, but also developing a cyclical systematic approach to the next sequence of three-week reviews. Some of that would be around identifying early on what candidate easements might be, some of it would be around what I was calling a kind of snag list in terms of regulations, things which might not be working quite the way they should, so that we could come back to them quickly. But then alongside that we identified the need to provide guidance, and also to have an eye on the longer term as well.

So on the back of that meeting, one of the First Minister’s senior civil servants then distilled that down into three workstreams. One was what we call the kind of nuts and bolts, which is the practical application of the regulations; one was the cyclical review; and then the third was that longer term continuity and recovery work. And, you know, at points they had a bearing one on another, as you would expect and then officials were allocated to lead on each of those three workstreams.

So as soon as we got – this probably happened before the end of the first review period, but certainly at the start of the second review period we’d developed that, at official level, regular sequence of I think weekly meetings at that point where people would come together and work through the points that needed to be taken into account for the review, drawing on all the evidence that we needed to draw on, and applying that in the context of the legal advice; and then over the subsequent two review cycles, I think, we refined the guidance which we were giving from Legal Services to officials about how to think through the mass of evidence and candidates for regulatory change and how to marshall all of that for ministers in a way which complied with the legal tests, translating the regulations into a practical set of guidance for officials to bring that together.

Lead 2B: Thank you, Mr Miles, and we’ll look at some of those documents and some of that guidance.

I think you’ve got a tendency to speed up slightly when you’re giving your answers, so I’ve been asked to just ask you to slow down.

Mr Jeremy Miles: Certainly.

Lead 2B: But I think I need to slow down with my questions as well, so it will be a joint endeavour on both of our parts.

Now, Mr Smithson says that his approach was guided by legal advice on the obligations in the regulations, which I think is a reference to legal advice given by Helen Lentle on 11 April. If we could just have a look at that, it’s INQ000349314, please. If we have a look at the second page of this document, at the ninth paragraph at the bottom – thank you – it says here:

“Ministers’ reasons for ending the Regulations in whole or in part will need to be firmly rooted in public health considerations as required by the legislation as explained above. Whilst … [Document read] … greater consideration than the public health matters.”

So legal advice, Legal Services’ advice, pretty clear here that the economy at this stage was very much a secondary concern to public health considerations.

First of all, is that a fair summary of that advice?

Mr Jeremy Miles: Well, I don’t think they’re making a policy choice, they’re describing what they think the law requires, and the consideration in the regulations is that it’s a public health rationale which needs to underpin the regulations.

So, firstly, is the regulation, the restriction, necessary to achieve the public health outcome and, if it is, is it proportionate? And there are a set of ancillary considerations which are broader than that, but that’s where ministers need to focus their efforts in decision-making.

This note was, I think, the first of a sequence of notes which spell that out in increasingly practical terms for colleagues.

Lead 2B: Looking back, and knowing what we know, and just how much lockdowns and restrictions impacted upon not only the Welsh economy but what we know now about indirect harms, for example, of lockdowns, do you agree with this advice here that primary consideration has to be public health considerations, and other considerations such as economy, economic recovery, hardship, are very much secondary considerations?

Mr Jeremy Miles: Well, this is a balance of harms in the way that you described it, and in later documents, which we published as a government, we spelled out how the legal advice fed into the broader set of considerations which we took as a government.

So there was a – I think within a very short time after this advice was given, a guide was published by the Welsh Government, which I think is pretty clearly rooted in the legal advice which we have here, but which does talk about the broader considerations as well.

So I think it is that balance of harms, and it’s critical to recognise the indirect harms of Covid and of the lockdown as well, or of those restrictions.

Lead 2B: This legal advice – and I accept what you say that this is perhaps the first iteration of a series of guidance documents and advices that we will have a look at some of in a moment – but this legal advice doesn’t refer to the impact of the pandemic on vulnerable groups or those with protected characteristics as a relevant consideration, and we know that there was no equality impact assessment carried out at this stage for this first review of the regulations.

Now, why was that?

Mr Jeremy Miles: Well, I think it was the pace at which everyone was working at this point. The document at an earlier stage talks about the importance of equality of treatment and being able to explain the differential impact of restrictions on different groups of people. So I think there is an acknowledgement in this initial document of that, and, as you will know, by the time we got to the second review that was very much more clearly set out, both in the legal advice provided but also in the papers which were provided to support the decision-making.

Lead 2B: We have a look, then, at the next review which was to take place on 7 May.

If we have a look at INQ000349494, please, we see here it sets out four steps that must be considered before a decision is taken by ministers.

If we have a look at page 2, please. So:

“Step 1 involves an assessment of the extent to which [the] restrictions are necessary to contain [the virus].”


“Steps 2 and 3 involve an assessment of whether restrictions are proportionate on public health grounds.”

And then step 4 involved an assessment of, first, the extent to which a restriction may be disproportionate and then, secondly, the public sector equality duty.

It’s right that this paper formed the basis for the next review then of the regulations?

Mr Jeremy Miles: It did.

Lead 2B: There was still at this point on 7 May no equality impact assessment carried out. Why is that?

Mr Jeremy Miles: Well, there was a high level analysis of the impact of restrictions on groups with protected characteristics, but it was not a comprehensive equality impact assessment, and I think there are two reasons for that.

Firstly, the continuing pressure on resources and the ability of the team to respond under that pressurised – in that pressurised context; but, secondly, the advice which went, with the note that you just talked about, went to – as part of the ministerial advice, and may have gone to Cabinet – I can’t now recall specifically that – talks about the need for us to put in place those equality impact assessments and acknowledges, I think, that up until this point we haven’t really been talking about significant easements, we have been maintaining that set of restrictions, and I think acknowledges the reality that as we look at what choices we can make to withdraw some of those restrictions or amend them, that set of choices needs to be more clearly guided by an understanding of the impact from an equalities perspective. And there was a discussion at that Cabinet on the second review, which was clear that we needed to get to that position very quickly, that we needed to make sure that we had that better understanding.

There was a lot of activity working separately to the discussions in Cabinet where ministers were talking to their own stakeholder groups in order to make sure that we understood from them how the restrictions were affecting them, but none of us – you know, we recognised the importance of that stakeholder engagement and the importance of hearing the voices of others in this, but clearly none of us thought that we’d got to the stage where the level of impact assessment was adequate yet at this point.

Lead 2B: I think you say in fact in your witness statement, it’s paragraph 161, that the lack of an equality impact assessment at this second review was an issue that you yourself raised with Cabinet.

If we perhaps have a look at the legal advice that accompanied the 7 May review, it’s INQ000227609. If we have a look at, on page 1, (iii). Thank you.

“At present there is very limited information on the equalities impact of proposals. Carrying … [Document read] … vulnerable in an event of a challenge.”

If we could have a look, please, at (iv), I think same page, it says here:

“Any other factor insofar as it informs that key decision-making … [Document read] … of the longer term recovery of society and business.”

I mean, that suggests that factors could only inform decision-making if they were, as it says there, complementary to and did not go against the science. Did that seem an appropriate balance, in your view?

Mr Jeremy Miles: Well, I think that – what I think the impact assessment tells you is the need, where those two things are intention, to look for ways of mitigating that and to ensure that the steps that we are taking as a government is proportionate, in the light of the impact that the restrictions will have on, you know, all cohorts of people with protected characteristics, for example. And advice had been given earlier than this, by the way, I think on the 16th, which was a sort of proportionate version of this longer form legal advice which would apply in the context of what everyone recognised to be an emergency.

So it was clear to officials, even from that first advice which pre-dates this that, you know, it wasn’t an option not to assess impact, it was a question of how you did that, and doing it in the context of emergency required a different approach from, you know, from more normal times. But by this stage we were getting to the point where we were recognising we needed to move on to the next, you know, level of depth, if you like, in relation to equality impacts in particular.

Lead 2B: You explain in your witness statement, it’s paragraph 177 – we don’t need it pulled up, thank you – on 22 May you say that further refinements were made to the process and governance arrangements for the 21-day reviews, following an update to the decision-making process document that we have just looked at a moment ago.

That updated paper, we’ve got that, it’s INQ000349505, please, and if we can have a look at page 2.

This outlines again the four steps. It notes that a similar decision-making process has been adopted in Northern Ireland, but then it says:

“For reasons that are not totally clear (because we don’t understand them), those … [Document read] … adopt this process.”

Can you help us understand, what were the problems that were being faced at this point in time?

Mr Jeremy Miles: So this document is not the next iteration of the legal advice, this document is a note which was written for me in order to have a discussion specifically with legal services colleagues on the concerns which they had raised with me, and there is a second document which is in fact an update to the one we’ve just been speaking about, but this was a bespoke note to draw this issue to my attention, and I think what the note was telling me was that a tendency had developed to look at the legal framework as being somehow additional or supplementary to the work of figuring out what easements needed to be made, what the effects of those choices would be, what the medical, scientific underpinning for those choices would be, and lawyers are indicating a concern about the two parts of the process with being too separate in their view.

So in light of this, I sent a note through my private office to Cabinet colleagues and officials to make it clear that I expected to see the framework which had been developed by legal services being the tool by which officials would collate, assess and present that advice to ministers, because the legal underpinning of the regulations is obviously fundamental to it.

Lead 2B: What was the response to your intervention to your ministerial colleagues at this stage?

Mr Jeremy Miles: I think I remember that there was a note in the next Cabinet papers or ministerial advice which acknowledged the fact that I’d expected this to happen, and I think that had been taken into account in the way the analysis was presented to ministers in the next cycle.

Lead 2B: The next 21-day review took place on 27 May. You deal with this in your witness statement, it’s paragraph 178, and you say:

“… papers put before Cabinet were prepared in accordance with the revised decision making process, and expressly considered the impact of decisions on groups with protected characteristics (even though a full IIA was not completed).”

IIA, that’s an integrated impact assessment. So again there is no formal equality impact assessment at this stage. Why is that?

Mr Jeremy Miles: Well, earlier in the week or before I’d sent that note into the system, I had also had – prompted by a request for myself for an update on how progress was going in relation to strengthening our approach to equality impact assessments – I had had a note from officials which, from memory, said that on a policy level within portfolios there was work happening which was uneven, so there was no suggestion that it was happening in every case, but that it was improved to put in place an integrated impact assessment, and that what would be the ambition was to be able to do that at a global level across the entirety of the review process, but that we weren’t in a position yet to do that because of the pressures that the team and the system were under.

But I saw in the 27 May papers evidence of, you know, an increasing focus on equality impact assessments, not the full IIA. I think this was the last of the reviews, which didn’t have that fuller assessment, and I think by the next review we were publishing alongside the reviews themselves the summary impact assessments.

So I think everyone recognised the need to move as rapidly as possible. We were getting external challenge as well at this point. So, from memory, we’d had a correspondence from one of the Senedd committees and the ECHR had also been writing to us to encourage us to publish the assessments, so there was a clear recognition that we needed to strengthen that aspect and were moving in that direction, but we hadn’t reached there at this point.

Lead 2B: Fast forwarding a little bit, you attended Cabinet on 15 October, that was to consider are the imposition of a firebreak across Wales, and you say in your witness statement you were glad to see that Cabinet was provided with an equality impact assessment.

You say at paragraph 243 of your witness statement, and I’ll just read it to you:

“I was glad to see this as I had reminded officials in late September about the need for impact assessments (as they had not always been produced for decisions on local restrictions, given the urgency with which the local restrictions had been imposed).”

So obviously what you’re saying there is that the issue about lack of equality impact assessments arose again in September; is that right?

Mr Jeremy Miles: I think it’s a slightly more – it’s a slightly different context because these were local lockdowns, so there was a question of proportionality about whether you would do a full impact assessment for each of those individual decisions, or whether you would draw on a clear understanding of what similar restrictions applied on a larger footprint would, you know, what impact they would have.

So I think by that stage we were saying, or the advice coming from me was: we’ll do a summary impact assessment across the entirety of the national regulations and the review process for that, there’ll be a set of more detailed impact assessments at a portfolio level, and by this stage a number of those had also been published as well – I think from memory there was a number in the education space, but in others as well – and the question was: at a local level was it proportionate to do a full impact assessment? I think at that point the conclusion was that that would be a challenge.

Lead 2B: You, just finishing up on this topic, say at paragraph 338 of your witness statement – this is a section of your witness statement dealing with reflections and lessons learned – you say during your time as Counsel General:

“If we were ever to face a similar challenge again in future, I would want us to establish an earlier pattern of formal impact assessments (both equality and children’s rights impact assessments, as well as socio-economic impact assessments under the new socio-economic duty).”

Do you envisage any practical methods by which this could be done in the event of a future pandemic?

Mr Jeremy Miles: Well, I think what happened probably in early June, there was a paper to the project board which I was chairing at that point which looked at impact assessments and how we could strengthen our approach to it, and there were some very practical suggestions in that about the way in which the support available to officials from our data team and others could be more, you know, clearly identified and, you know, signposted and available, on the one hand, but then a more streamlined approach informed by legal advice to how one could develop integrated impact assessments on the other.

So there were some practical suggestions in there which then led to, you know, what I think was fair to say a step change by the autumn in terms of our approach to equality assessments, and the point where we then went into the traffic light, the alert level regime from the end of the year onwards, there was a more consistent package of restrictions against which to measure those impact assessments and that was, you know, a much more streamlined approach, I think.

Mr Poole: Mr Miles, we’re going to change topic.

My Lady, if that’s an appropriate moment for the break.

Lady Hallett: Yes, of course.

We take breaks quite regularly for stenographers, translators, the rest of us, and so I shall return at, well, 3.15, and I promise you we will complete your evidence today, because I am conscious you have many other duties.

The Witness: Thank you.

(2.58 pm)

(A short break)

(3.15 pm)

Mr Poole: Mr Miles, change of topic, regulations and guidance, please.

Now, we know that regulations were obviously supplemented by guidance, and you explain at paragraph 181 of your witness statement that there was a policy issued on 22 May 2020 to help co-ordinate the approach to guidance.

If we can have a look, please, it’s INQ000349531. If we can have a look at page 4, please. Oh, we are – sorry – already there. It says here:

“With material being published online at such pace, there has … been some inconsistencies between different pieces of guidance and some confusion over ownership of the guidance … [Document read] … correct legal position.”

Now, as a lawyer, obviously that would be, you would agree, a very worrying position to be in. How did the Welsh Government end up in the position where that was the case?

Mr Jeremy Miles: Well, anything which was new or controversial ought to have been sent to me, at this point I was taking quite a hands-on approach to guidance, I think, depending on the timing of this, probably the end of May.

Lead 2B: 22 May.

Mr Jeremy Miles: Thank you. But people are working at great pace and people are amending guidance that’s already online, so it may have resulted from that.

Lead 2B: One particular aspect of guidance that I’d like to ask you about next is the so-called 5-mile rule.

At paragraph 195 of your witness statement, you say about the 21-day review on 27 May 2020:

“We agreed to change the ‘Stay at Home’ provisions to ‘Stay Local’, to allow for outdoor activity within an area local to where the person lives, providing social distancing rules were maintained.”

If we can have a look at, I think, the next – another passage, so it’s paragraph 196 of your witness statement. Thank you very much. You say here:

“Given the significance of the proposed change there would be a need for clear public messaging and Guidance on what was meant by local, while reinforcing the need for the two metre physical distancing rule to be maintained. It was not possible to legislate to define ‘local’ as it would mean different things in different parts of Wales, depending for example on whether it was an urban or rural area. A distance of five miles was proposed for the guidance, but with a recognition that this would vary in more rural areas, where people were already travelling greater distances for provisions. As this was provided for in Guidance not Regulations, we often referred to this as ‘less a rule more a rule of thumb’.”

Now it’s fair to say that this particular piece of guidance garnered quite a lot of attention from the Welsh public and the media, and the First Minister was asked questions about the 5-mile rule at a press conference on 19 June.

Now, we can see a summary of that press conference.

It’s INQ000090582.

We see – I think it’s on the second page – a question asked:

“I wonder if I could ask you for more clarity … [Document read] … of your home.”

Then the First Minister’s answer:

“So the five miles is advice, and not a rule. The … [Document read] … geographies of Wales.”

Then later on, three lines from the bottom of that quote:

“How do you know what is local … [Document read] … what staying local might mean.”

If the logic behind the regulations was that people have to interpret the rule in their own circumstances under very different geographies of Wales, do you think that suggesting a distance of 5 miles just created confusion? Why was there a need to specify a distance at all?

Mr Jeremy Miles: Well, because we had experience in the last set of reviews, the last review before this, we had provided for exercise to be undertaken locally, and had not defined what “locally” meant in that context, and that was confusing to people as well.

So in a rapidly changing regulatory environment, where you’re legislating in a novel way, in ways which touch all aspects of someone’s life, breadth can be confusing and specificity can be confusing.

I think the term that we had here was “it’s a rule of thumb”, seemed to me to be an intuitive way of communicating to people: it kind of depends on your circumstances, but if you’re asking for some guidance from us, 5 miles is a pretty good guide.

Lady Hallett: But isn’t the problem – we had this in Module 2 when I looked at some of the regulations. I’ve spent nearly 50 years as a barrister and judge in criminal justice, and I couldn’t have enforced the regulations. Some of them were extraordinarily complicated, and the problem comes when you fine people for breaching what isn’t clear. Isn’t that the problem? It’s not necessarily just the inconsistency between guidance and rules, it’s that: how can you fine someone for not being local when you haven’t defined what local is?

Mr Jeremy Miles: Well, it’s a difficult situation, isn’t it, and these are unprecedented circumstances and I think governments everywhere, certainly speaking for the Welsh Government, are trying to reconcile those, you know, competing priorities: one which is to ensure that there is a sanction so people have a sense of the seriousness of the need to comply; but on the other, you know, recognising that because it’s so broad, because the breadth of the regulations are what they are, they apply in all aspects of life, there is just a compromise in a sense.

I do think it’s fair to say that, you know, the UCL report, amongst others, said that actually the understanding of the law in Wales was comparatively positive, good, and the work that we did to red-line the regulations, at least for the benefit of lawyers and enforcement authorities, I think was also appreciated and I think was also unprecedented in the context. Because we were trying to grapple with ways in which to make, you know, what are very stringent regulations practically applicable in people’s lives and, you know, some of it is very complex.

But I think the evidence that we have here in the press conference isn’t so much about the complexity of it, it’s often about the novelty of it. People having rules, you know, brought forward every three weeks and they’re naturally thinking: what does this mean? What can I do? What can’t I do? And I think some of this is about that.

Lady Hallett: I understand all the difficulties and the pressure everyone was under, I just have this long-standing allergy to criminal offences – which is effectively what they are if you’re going to fine people – which just aren’t clear. It just seems to me wrong. Shouldn’t a government in that situation say, “We can’t go with ‘local’ because it’s just not sufficiently clear and we’re going to fine people if we think they’re not local, even if they think they are, we’re just going to have to decide on a distance”, because you can’t just leave it to individuals, to police officers, to whatever, to enforce what is an unenforceable rule, can you?

Mr Jeremy Miles: Well, the guidance was intended to give some –

Lady Hallett: I’m talking about the rules.

Mr Jeremy Miles: – direction to the interpretation –

Lady Hallett: The rules if you’re in breach.

Mr Jeremy Miles: No, I understand.

Lady Hallett: You get fined.

Mr Jeremy Miles: But the tension which we’re trying to reconcile is that 5 miles in all parts of Wales doesn’t get you to the shop that –

Lady Hallett: I know, because of the geography.

Mr Jeremy Miles: Yeah. So that’s the challenge, and it’s an imperfect context, but that’s the rationale behind the thinking.

Lady Hallett: Sorry, it’s one of my hobby horses, as you may have guessed.

Mr Poole: Mr Miles, 5 miles wasn’t chosen on the basis of any scientific evidence, was it?

Mr Jeremy Miles: There isn’t a science that says that 5 miles specifically is the right distance, but the science does support the view that, you know, limiting travel long distances is positive in terms of limiting transmission.

Lead 2B: If we could just have a look at the advice given to Cabinet in respect of this policy.

INQ000215411, yes, page 5. Thank you very much.

It’s the bottom paragraph. I am going to pick it up five lines down on the right-hand side:

“Setting a specific distance in regulations … [Document read] … allows for reasonable interpretation.”

Then if we can turn over the page, please, page 6, first paragraph:

“There is no specific evidence … [Document read] … such as rurality).”

So effectively it looks as though 5 miles was chosen by the Welsh Government in order to align with what had been introduced by the Scottish Government; is that fair?

Mr Jeremy Miles: Well, I think the points that we’ve just been discussing about whether it’s possible to define more precisely in legislation is, you know, even more critical if we acknowledge, as we do, that there isn’t science that says that 5 miles as opposed to 5.1 miles or 4.9 miles is the right distance.

So what you’re trying to do is find a distance which is defensible, because it allows people to go about their daily lives and do the things that we want them to do without putting yourself in a position where there are no restrictions. So it’s that practical balance that we are trying to strike.

Elsewhere during the Covid time there were calls for governments not to choose rules and regulations and distances and measurements which were different from other governments just for the sake of it. So I think this is a sense in which we are looking at what another government has decided and thinking: well, this feels like it might be workable for us here in Wales. Is it? We think it is, then we’ll go with it.

Lead 2B: Another point arising from this same piece of advice, if we can have a look at page 4, and I think it’s the penultimate paragraph. So this is now dealing with 2-metre social distancing, and I’m picking it up six lines down, please, where it says:

“It appears that most people believe … [Document read] … being seen as optional.”

It suggests there that reliance was being put on the public not actually appreciating the difference between regulations and guidance; is that right?

Mr Jeremy Miles: Well, it’s recognising the reality that 2-metre physical distancing had been, you know, perhaps the single most identifiable Covid requirement from early on, and it had become so entrenched in people’s understanding of what they needed to do that people had assumed it was law. You get to a point where, if you’re going to say “Actually we’re now going to legislate”, it changes that understanding, and what became clear to us over the course of the months in 2020 was that we needed to have a set of, you know, behavioural responses which people could intuitively understand and feel were reasonable, sensible and they could, you know, they could comply with. And so that’s what’s beneath this: people were responding to that, despite the fact it was in guidance not regulation, so why would you take a step which risked undermining that? Because of course in Wales the 2-metre physical distancing wasn’t, from an individual’s point of view, the subject of enforcement.

Lead 2B: I understand.

I’d like to change topic now and ask you some questions about border issues.

In October 2020, there was an issue that arose whereby those living in high prevalence areas in England were not legally prevented from entering areas of low prevalence in Wales, and this is something that the First Minister wrote to the then Prime Minister about – and we’ll look at that with the First Minister tomorrow – but legal advice was sought as to what the Welsh Government could do about this in the event that the UK Government was not willing to act.

If we can have a look at that advice, it’s 12 October.

And it’s INQ000349939. If we can have a look at paragraph 5, thank you:

“… Welsh Ministers have power to make … [Document read] … could constitute an offence.”

Were you sighted on this advice?

Mr Jeremy Miles: Yes.

Lead 2B: And you agree with the advice that was given?

Mr Jeremy Miles: Yes.

Lead 2B: The firebreak prevented travel to and from Wales without a reasonable excuse but, as we know, the firebreak was only in place between 23 October and 9 November 2020. On exiting the firebreak, the Welsh Government did decide to legislate in the way envisaged in the advice we’ve just looked at. That decision, however, was not taken until 2 December, the firebreak obviously ending on 9 November.

Given the concerns about the rapid rise of infection levels coming out of firebreak and how that might have contributed – be contributed to by this migration or travel from high prevalence areas in England into Wales, why was this not legislated for sooner?

Mr Jeremy Miles: Well, we legislated for Tier 3 restrictions – sorry, for areas that were in Tier 3 limitat – restrictions in England for travel to and from those areas to be – to be restricted in Wales, so that, you know, people travelling into Wales for that purpose would be committing an offence. I don’t recall at this point why that decision wasn’t taken sooner, but I would be very happy to consult – to reflect on it.

Lead 2B: If we can return to this – yes, it is this document – so this is the legal advice on 12 October. We’re now looking at a slightly different point, it’s paragraph 13. It says here:

“There is one further which matter which needs to be considered … [Document read] … given the absence of statutory provision in Wales.”

As I understand it, Cabinet didn’t decide to make self-isolation a legal requirement until 29 October; that’s right, isn’t it?

Mr Jeremy Miles: At some point in October certainly, yes.

Lead 2B: Again, why – this advice on 12 October, why wasn’t that actioned sooner than it was?

Mr Jeremy Miles: Well, this is just telling us what the current disparity is. I think it’s likely what will have happened is after Cabinet those proposals will have been developed in light of this advice.

Lead 2B: Changing topic again and dealing now with the effect of differing restrictions in England and Wales, the Inquiry’s heard evidence that there was that problem with public health communications during the pandemic in respect of clearly outlining and informing members of the public which were, say, UK-wide rules, English-specific rules or Welsh-specific rules.

You wrote to the UK Attorney General, Suella Braverman, on 13 May about this. We don’t need your letter up, but I’ll just quote. You say:

“… I urge you to take steps to ensure that your government … [Document read] … England and in Wales.”

That’s 13 May. Was that letter prompted by the UK Government’s announcement on 10 May that it would be changing its public health message from stay home to stay alert?

Mr Jeremy Miles: It was, and the message was, you know, perhaps inevitably broadcast into every, you know, home in the UK without it being clear that these were restrictions which – sorry, these were changes which were applicable to England only, and we were concerned at a development which subsequently came to pass, which is, you know, significant numbers of people crossing into Wales, driving into Wales for leisure purposes and in doing so breaching the regulations in place in Wales.

Lead 2B: So that was your letter of 13 May and, just for the record, that’s INQ000349454.

You received a response to your letter on 5 June – again I’m not going to ask for it to be displayed, but it’s INQ000349548 – and Ms Braverman said in response:

“Your letter also encouraged me to take steps to ensure that the UK government … [Document read] … lockdown in England and in Wales.”

So this is now 5 June. Did you see an improvement in the clarity of UK Government public health messaging, having raised this issue with the Attorney General?

Mr Jeremy Miles: I don’t think I could say that I did particularly, no.

Lead 2B: We’re going to look at enforcement of legislation, regulations and the topic of fixed penalties in a moment, but leading into that topic, you had cause to write to the UK Attorney General again on 29 June and perhaps if we could see that, it’s INQ000349651. The second paragraph, you say:

“I have become aware of the recent review … [Document read] … interfacing with the justice system.”

So it would appear, therefore, that the police on both sides of the border were confused which regulations applied in England and which applied in Wales; would that be fair?

Mr Jeremy Miles: It would.

Lead 2B: What was done to address this?

Mr Jeremy Miles: From memory, the next letter from the Attorney General tells me that she had been in contact with the College of Policing, as I understand it, and what we were doing as a government in Wales was to make sure that, you know, the tools which we have, which don’t reach into homes right across the UK in terms of the communications, were, you know, being deployed in order to minimise the risk of this. So we had at various points signs on motorway – on the side of motorways telling people that, you know, there were different restrictions in Wales, but also using or social media channels, the First Minister’s press conferences, announcements and so on, to make it clear what the law was in Wales and also working through our channels with the police in Wales to make sure they understood, you know, in as near real time as possible what the changes were in Wales. But, you know, the scale of the changes that we were bringing in on both sides of the border and the rapidity with which that was happening inevitably is going to create some confusion, but it’s the task of governments to minimise that.

Lead 2B: The response you refer to from the Attorney General, just again for the record, it was a letter of 28 July, and it’s INQ000349748. And in terms of those incorrect police charges, I think Ms Braverman said that mistakes were still being made but this had reduced in number.

Let’s move on, then, to the topic of enforcement during the pandemic. I suppose the first question: why was it felt that criminal sanctions were necessary for breaches of the regulations?

Mr Jeremy Miles: It was felt they were necessary because of the implications on public health of regulations not being complied with, and we felt that the fixed penalty regime and the levels at which they were set in Wales were a proportionate way of doing that but also would signal the severity and would provide the deterrent we hoped in doing so as well that, you know, they were important behaviours that people needed to comply with in order to keep one another safe.

Lead 2B: You say at paragraph 192 of your witness statement, if I just read that to you:

“The UK Government increased the sums payable under the Fixed Penalty Notice regime for breach of coronavirus restrictions, with sums increasing rapidly after a first … [Document read] … I exhibit[ed] the document …”

If we just go to that ministerial advice, please.

It’s INQ000145221.

Looking at the fourth paragraph:

“There has been an increasing call from both Police and Crime … [Document read] … in Wales which is making enforcement difficult.”

Did you recognise the concerns expressed in that paragraph?

Mr Jeremy Miles: Yes, I think so.

Lead 2B: A decision was taken in Wales to increase the fines to £120 for a second offence, and that was then to double for each further offence to the level of £1,920 for a sixth or subsequent offence.

Now, that was different to England, England had an upper limit of £3,200; different again to Scotland, which obviously shared the border with England, that had an upper limit of £960.

What was the rationale for Wales setting a different limit to England and a different limit to Scotland?

Mr Jeremy Miles: Well, just to say this wasn’t the point at which the fine rose to £120 for the second offence, that was prior to this. But the advice in the – in this document also, I think, told us that there wasn’t a particular case which suggested that parity was compelling, and – but that there was a case for increasing fines in order to be able to meet the objections – meet the objectives which the police and others were telling us were real.

So this was a decision taken by the First Minister, it’s obviously the culmination of correspondence between his office and the police – policing in Wales, through the Commissioners and the chief constables, and it seems to me the advice doesn’t make a compelling case for the entirety of the increase but makes a pretty strong case for an increase, and I think that’s the balance that was struck in the First Minister’s decision.

Lead 2B: Organising an unlicensed music event in Wales had a penalty of £10,000; breach of passenger information regulations, a penalty of £4,000; and failing to isolate following international travel from certain countries abroad, a penalty of £1,000.

In light of the civil libertarian issues, the public health context, and the fact that these fines were being produced and imposed for breaches of social movement, in your view, were the level of fines in Wales proportionate?

Mr Jeremy Miles: Well, these were difficult questions and judgements to reach. I think overall they were. The £10,000 fine for the unlicensed music event, the risks which would arise from such an event were so considerable that we felt that it was acceptable to have a notice at that level, because of course there were court proceedings available if an individual didn’t wish to accept the notice. And it was a matter of days, I think, after the decision was taken that there was a – there’d been an example in the days preceding this decision for the £10,000 fine, and I think a day or so after there was an event – as it happens, in my own constituency – which I think the fine was levied at then. So we felt that was such an egregious risk to public health that a fine at that exceptional level was merited.

Lead 2B: Can we have another look at your witness statement, INQ000389184, this time paragraph 193. You say here:

“On 23 May 2020 I was copied in to an MA that was sent to the First Minister … where the First Minister was asked to designate Chief Constables in Wales to permit them to bring proceedings for offences under the Principal Regulations and to agree to a request by the Attorney General to make such proceedings ‘specified proceedings’ so that the police could prosecute them under the Single Justice Procedure. This was agreed, and letters to each of the four Welsh police forces designating them for this purpose were signed by the First Minister.”

Now, the single justice procedure is a legal procedure in England and Wales that allows certain low level criminal cases to be dealt with without the need for a full court hearing.

Now, what was the rationale for agreeing to the Attorney General’s request to use the single justice procedure for breaches of coronavirus regulations?

Mr Jeremy Miles: I think, from memory, it was the pressure on the courts system for the number of offences that were coming through and potential for that to increase in the future, and I think, mindful of the availability of full court proceedings as an alternative, that will have been the basis of the decision.

Lead 2B: You refer in your witness statement to a rapid review of fixed penalty notices.

Mr Jeremy Miles: Yes.

Lead 2B: That was undertaken on 6 October 2020. We can see that, it’s INQ000349910. Who undertook that review?

Mr Jeremy Miles: So I think the document that I’m looking at now was not the product, which I don’t think – which came to us as ministers. I think this was the internal document for officials, I think. It was undertaken by one of the officials in the Welsh Government.

Lead 2B: We can have a look at this first page, there’s a detailed analysis there of fixed penalty notices issued in Wales between 27 March and 21 September 2020.

If we could have a look, please, at page 12 of this document, if we go to the – I think it’s the fifth paragraph, the review concluded:

“The picture painted above is deliberately stark … [Document read] … fear being fined or prosecuted for caring for others.”

Now, one of the things noted in this paper is that the mass protests that were taking place across the country, for example Black Lives Matter, were not resulting in mass issuing of fixed penalty notices. So that’s some context for what is said there.

If we can have a look, please, over the page, page 13, first paragraph:

“Such inconsistency risks totally undermining the cultural norm of British Society which … [Document read] … feel is reasonable for them to do and legitimises an individual approach to the rule of law and to justice.”

Then the same page, last paragraph, please:

“The genie is very much out of the bottle and for the public sector to regain the confidence of the public … [Document read] … a new approach needs to be developed.”

Now, the right to protest, there’s an obvious balance between the individual right to protest and the government response to public health emergencies.

Do you assess that the use of regulations and the operational activities of the police in Wales, that balance was correctly struck? And I’m thinking with particular reference to Black Lives Matter protests, June 2020; there were then protests later, I think it was April 2021, calling for a quicker relaxation of the rules.

Was the balance correctly struck, in your view?

Mr Jeremy Miles: Well, we wanted to make sure, I think, that – or the police wanted to make sure that the right to protest was, you know, a real right. These are difficult balances to strike and judgements to reach. Just to say the text in this document is not one which I think I’ve seen before, and the last sentence talks about a new approach needing to be developed and I think at this time in our approach generally we were taking a different approach, which was around, as I mentioned earlier, moving from a model based solely on regulation to one which is more behavioural and intuitive for people. So I think that that point was being borne out in government thinking more broadly. But there is – you know, it is a difficult balance to strike, I think.

Lead 2B: There was a further review of fixed penalty notices carried out in November 2020.

If we can have a look at INQ000350014.

Again, was this – similarly to the last document we looked at, was this something that you’ve seen or was this at a lower level? Was this just for –

Mr Jeremy Miles: This I have seen. I believe that the earlier document was – led to this, but I didn’t write it so I can’t vouch for it.

Lead 2B: No, I understand.

If we can have a look, then, please, at the second page, paragraph 12, beginning there “Key findings”, it sets out the key findings.

So it’s fair to say that this review had identified a number of concerns that remained at this stage, so this is November 2020. Those concerns included disproportionate impact on those with protected characteristics, whether cases were in fact being correctly charged and reliance on enforcement officers to determine what is a reasonable excuse.

Just focusing on a particular aspect of those concerns, if we can have a look at subparagraph b on page 3. Thank you. So “grounds for concern” were expressed here about the extent of the disparity in the distribution of fixed penalty notices based on protected characteristics.

Did the Welsh Government recognise this disparity in the distribution of fixed penalty notices?

Mr Jeremy Miles: Yes, and it was something we were concerned about, and I know that it’s something which my ministerial colleague with responsibility for the relationship with the police was raising in discussions with them as well.

Lead 2B: Is that Reg Kilpatrick?

Mr Jeremy Miles: No, that will have been Jane Hutt.

Lead 2B: Can you help us with what actual steps were taken, particularly in regard to the concerns we see set out there?

Mr Jeremy Miles: Well, this led to a – this document, I believe, is appended to advice to ministers to advocate for a different approach in relation to fixed penalty notices for a small number of offences. So one is the one which you’ve talked about already, which is unlicensed music gatherings; another is, from memory, self-isolating after travel; and there were some business offences as well. And this is the product of the review which underpins the advice to ministers which led to some changes being made.

Lead 2B: Let’s perhaps focus then on the £10,000 fine for unlicensed music events, because we can see at page 5, paragraph 20, there is recognition there that £10,000 remains an exceptionally high sum for any individual or business.

Then the next paragraph, paragraph 21, just to summarise what’s said there, effectively the police wanted to retain the ability to impose a £10,000 fine.

And if we can go over the page to paragraph 22, there’s a recommendation to remove the £10,000 fixed penalty notice for unlicensed music events:

“… and communicating to the police that that we consider these offences are so serious that in some circumstances they do warrant prosecution, notwithstanding the operational imperative to minimise those circumstances.”

The ministerial advice I think that followed on from this review explicitly recommended removal of the £10,000 fixed penalty notice for unlicensed music events, and to be replaced with a requirement for criminal prosecution.

I don’t need that advice displayed, but just to read from it:

“Legal services considered that any step to ensure that such events are enforced by means of prosecution rather than simply a fixed penalty would appear to be a proportionate one, notwithstanding the potential deterrent effect of having a large fixed penalty.”

Do you recall the First Minister in fact sought your views on this issue?

If we can have a look at INQ000350094, please.

I think we’re looking at the second from last email that was sent, so it was sent on 19 November. Thank you.

“… the First Minister does not feel able to agree in principle to the amendments … without some further discussion. He has asked for:

“1. The view of the [Counsel General].”

Your view.

Then we see your advice in the next email up the chain – thank you, yes – so second paragraph there:

“On the unlicensed music events, following further information … [Document read] … retained (contrary to the advice in the MA).”

So this is an example of your advice differing from that presumably with legal services that informed the advice in the ministerial advice; is that right?

Mr Jeremy Miles: Yes, the advice from legal services was one in which they were saying that there was a recognition in the advice that court proceedings were available, and that’s the point that’s being echoed in my comment here, and I’m giving weight to the deterrent effect of a penalty set at that level for an offence which generally speaking it’s hard to commit, you know, inadvertently.

The theme, completely understandably, underpinning the review was some of the offences for which people are being fined are the ones which are perhaps easier to spot, but are they the most egregious? That was the theme in the advice, and it seemed to me that here we have an offence which it’s very hard to commit by accident and is particularly egregious, and so the deterrent effect, coupled with the availability of court process, which is obviously essential, struck the right balance, and that’s the view which the First Minister then took as well.

Lead 2B: Returning to the issue we’ve touched on upon the single justice procedure, that was revisited in January 2021 when UK Government officials contacted Welsh Government officials to ascertain whether the Welsh Government intended that prosecutions under various sets of regulations would take place under the single justice procedure.

There was a ministerial advice prepared on the issue.

If we can see that, it’s INQ000145526.

We can see from that first page it was sent to you. We can see the summary, Welsh Government had been asked whether it wants Single Justice Procedure to apply to fines under the Welsh regulations.

If we can have a look, please, at page 3, paragraph 9:

“In practice, though, we know that decisions on whether to … [Document read] … as they are non-custodial offences …”

Then skipping a sentence:

“This will generate significant pressure … [Document read] … a reasonable excuse for their actions.”

Now, please, the next paragraph, paragraph 10:

“We are aware at least anecdotally from media reporting of offences being brought under the SJP … [Document read] … police had failed to provide signed statements.”

The advice was that the single justice procedure should not be applied to fines under the Welsh regulations, and I think you say in your witness statement that you agreed with that advice?

Mr Jeremy Miles: Yes, but the premise for the advice was that we were seeking data and information enabling us to evaluate whether this analysis, which it’s described here as being anecdotal, was in fact the case. So that was the underpinning for the decision. We are not able to form our own view in Wales of the enforcement implications in relation to offences which we are ourselves legislating for, and so being asked to make a decision in the absence of that isn’t the right approach.

We also understood that this had been an active decision under consideration by the UK Government for some weeks, I think months, at this point and this was a request being made of us with a matter of days to go, which we felt there was a case for having more information so that we could reach a concluded view, and in the absence of that that this was the right approach.

Lead 2B: I understand, and on 8 February 2021 the Lord Chancellor and the UK Attorney General wrote to the First Minister. We see that letter.

It’s INQ000104062.

If we can have a look at the second paragraph, please, essentially this says that, despite the concerns raised by the Welsh Government, the UK Government had decided to continue to use the Single Justice Procedure across England and Wales.

Now, you describe this as an extraordinary letter in your witness statement. Now, given that criminal justice matters are reserved to the UK Government, why did you find this letter to be extraordinary?

Mr Jeremy Miles: Because a set of legitimate concerns had been raised and had been dismissed and overridden without providing the evidence and data which the First Minister had very reasonably asked for.

Lead 2B: We have a look at the second page, third paragraph please. Well, yes, third bullet point. It starts “Police Forces …”, thank you:

“Police Forces, through the National Police Chiefs Council … have also taken steps to address concerns around disproportionality and mis-charging.”

Were you of the opinion that enough had been done to ensure that the Welsh Government could have confidence in the SJP?

Mr Jeremy Miles: In what sense?

Lead 2B: In the sense that you’re being told here that the UK – by the UK Attorney General and the Lord Chancellor, that steps had been taken to address concerns about disproportionality and mischarging, and we obviously looked at the data that had been collected in the ministerial advice that formed the view that the SJP should not be used within Wales in respect of fines under the regulations.

So my question is simply: when you received this letter, were you satisfied that enough had been done to quell those concerns?

Mr Jeremy Miles: I think the point is we hadn’t been given the information which we’d been asking for and which seemed a very reasonable request that could have been met and wasn’t.

Lead 2B: Having discussed the matter with you, the First Minister responded to the Lord Chancellor and the Attorney General, that’s a response of 2 March.

We see that, INQ000350632. If we have a look, please, at the second page, third paragraph from the bottom – yes. “There is”, thank you.

“There is still no practical option … [Document read] … are properly taken into account.”

Now, without going into any arguments about the pros and cons of devolution, what were the practical implications of the Welsh Government being able to make a law but having limited powers about the methods of prosecuting those offences?

Mr Jeremy Miles: Well, it seems to me right that the ability to make legislation as a government and the ability to enforce that legislation go hand in hand, because there are interdependencies between the two; we touched on some of them in the discussion that we’ve had today. But this paragraph in the First Minister’s letter I think recognises the complexity of being in a situation where, you know, fixed penalties are a proportionate response to the kinds of offences that we’re talking about, but they do come with other challenging implications, as the letter sets out.

Lead 2B: Had the Welsh Government not wanted the single justice procedure to apply to fines under the Welsh regulations, it could have withdrawn from the police in Wales the authorisation to prosecute those offences, so effectively leaving all prosecutions in the hands of the CPS. Realistically, was that an option?

Mr Jeremy Miles: Well, it was an option that was considered in general terms but then decided against, because we were fearful that would send the wrong signal around confidence in the police to manage the process which was being described here, and we felt that would be undermining and decided against it.

Lead 2B: Changing topic and moving to my last topic, which is about future recovery, Mr Miles.

It’s right, isn’t it, that you were tasked with co-ordinating work on preparation for future recovery?

Mr Jeremy Miles: It is.

Lead 2B: On 20 April 2020 Cabinet met and considered a paper entitled “Response to Covid-19: preparation for future recovery”. I don’t need that displayed. That paper drew on work that you’d been asked to undertake.

Now, just by the date of that paper, that’s 20 April 2020, work for recovery therefore started very early in the pandemic.

Now, whilst obviously no doubt you do need to prepare for recovery, do you think that work began too soon?

Mr Jeremy Miles: This took a different form at this stage. We wanted to make sure that the choices that were being made around the regulations and the removal of restrictions, you know, that we understood the impact of that on policy thinking into the medium term as well. There was a set of implications which the necessary diversion of energy and resource within the Welsh Government to respond to Covid was having on the government’s other activity and priorities, and so we needed to understand what that meant. So that’s how this began.

There were two strands to this. One was a set of meetings that I would chair with officials to make sure we were cognisant of that and the implications of lifting the restrictions on those policies, on the one hand, but then separately an external process which involved somewhat later, a few weeks later than this, I think, a set of external experts testing our assumptions on what this meant, which actually was very helpful and useful, and then, you know, bore fruit later on.

So I think it was a proportionate way of planning for, you know, a better time without making any assumptions about when that would arise, because at this point clearly we didn’t know.

Lead 2B: You say external experts, so experts out of the Welsh Government?

Mr Jeremy Miles: Yes, so the form-up which it took was a set of six roundtables initially with ten experts per roundtable – some of them were from overseas, some of them were from Wales, none of them were in the Welsh Government – testing our approach to policy and what we felt as a government would be an appropriate policy response to some of the challenges and pressures and changes that Covid had brought about; and then that was distilled down to a group of four people who really helped us deep dive into some of those challenges and there were maybe three or four, five of those meetings. That led to a publication in the autumn which set out our priorities for how we would respond to the consequences of Covid on young people, on old people, on some of the more marginalised socioeconomic communities, on black, Asian, minority ethnic communities.

So that was the purpose of that, and, you know, many of those interventions have since been taken up or are in development.

Mr Poole: Mr Miles, they’re all the questions I’ve got for you, but there are some questions from the core participants.

Lady Hallett: Mr Straw, I think you have a couple of questions of your own, and you’re going to ask one for disabled people’s organisations.

Mr Straw: Yes, thank you very much.

Lady Hallett: Thank you.

Questions From Mr Straw KC

Mr Straw: Good afternoon, Minister, I represent John’s Campaign and also Care Rights UK.

You discussed earlier inconsistencies and confusion in respect of guidance in particular in May 2020, and a number of stakeholders such as the Older People’s Commissioner have complained that regulations and guidance, particularly for people needing care and older people, was confusing and contradictory.

Could you explain, what were the problems or the factors that led to the guidance being confusing and contradictory?

Mr Jeremy Miles: Well, I think it’s a matter of judgement whether people find the guidance confusing and contradictory. Our objective as a government was to seek to make sure that regulations which were often necessarily complex could be understood by people, whatever their situation, through guidance which was more accessible and a set of FAQs which was intended to be very helpful. There will have been occasions on which we didn’t achieve the fullest extent of our ambition, but that was certainly what we aimed to do and, you know, my involvement was quite hands-on at points in the guidance with a view to seeking to achieve that. I’m sure we didn’t always strike the right balance, but that was certainly our intention.

Mr Straw KC: For the purpose of learning lessons, in light of those concerns that had been raised, the complaints that there was this confusion, what should be done better next time to ensure that guidance is clearer and more consistent?

Mr Jeremy Miles: Well, I think the situation improved over time within the period of Covid, we learned lessons as we went along, I think. I think there is a larger reflection, which is that a trajectory of the virus which started necessarily with a regulatory response, which then takes you into the territory of: what can I do, what can’t I do, and sometimes fine distinctions which can be hard to explain, inherently. The longer people live with that way of organising their lives and society, I think the more challenging it becomes, and I think, as I was mentioning to Mr Poole earlier, by the time we’d got to the latter stages of 2020 we recognised perhaps that, you know, a simpler, smaller number of messages would be more appropriate for that point, you know, taking into account the experience people had had for the last six, seven, eight months. So we sought at every point to try and learn those lessons.

Mr Straw KC: To pick a systemic example of a potential lesson to be learned, was there a single person within government who had clear responsibility for ensuring that guidance was consistent, readily understandable, and if not do you agree that there ought to be?

Mr Jeremy Miles: Well, I think in practice lawyers were very heavily involved in sort of writing of the guidance as well, including me as the Counsel General, so I wasn’t the person responsible for the entirety of the output, but there was a recognition that the sorts of judgements we were making both in terms of the regulations but also in explaining the regulations, you know, was raising questions as we went along which needed to be answered and refined.

So I’m not sure I know enough about the structure which officials had for marshalling inputs and comments and ownership of that process, but I think it generally worked well, but there will obviously have been exceptions.

Mr Straw KC: Okay.

A different topic. You say at paragraph 234 that the pandemic exacerbated existing inequalities and the most vulnerable had been the hardest hit.

The impact of the pandemic and its response on social care was devastating. For example, in the first three months of the pandemic, about 39% of deaths in the UK involved Covid-19, were deaths of care home residents.

When you said that the most vulnerable had been the hardest hit, were you referring to this group among others?

Mr Jeremy Miles: There were a number of groups whose situation, whose experience was exacerbated by Covid. Much of the work that I was doing in the future recovery work, you know, was very much rooted in that recognition that there were, you know, the burdens and impact of Covid certainly had not been equally borne by everyone in society, and some of our response to that in the medium term and longer term aimed to take that into account, and to learn those lessons as we went, in the way that you were asking me about earlier.

Mr Straw KC: Also at paragraph 234 you referred to the October 2020 government reconstruction plan, and that plan at page 12 states:

“Respondents highlighted the importance of increasing the status of social care and recognising the contribution made by paid carers.”

Does that indicate that at that point social care wasn’t given sufficient status, and the contribution made by carers had not been properly recognised?

Mr Jeremy Miles: No, I don’t think that would be an accurate way of summarising that point. I think it was a recognition that more could be done by a government that was committed to supporting the social care sector. I’m not the social care minister, so I’m not best placed to answer the detail of your question, but I don’t think the way you’ve put it would be a fair reflection of the government’s assessment at that time.

Mr Straw KC: Moving on, at paragraph 154 you note that on 5 May 2020 you convened a meeting of ministers to consider the non-shielding vulnerable cohort.

Now, concerns have been raised that people from this cohort, such as people with dementia, were prevented by the operation of regulations or guidance from accessing essential care and informal support, which was of huge importance to them.

Just to give a specific example, the 5-mile guidance that you mentioned earlier, there were reports in January 2021 of Welsh police fining a daughter for visiting her 94-year old mother with dementia in a care home that was 7 miles away.

Do you accept that there were shortcomings in the regulations and guidance in respect of this cohort?

Mr Jeremy Miles: We did amend the regulations in order to support members of the public to go visit family members outside the 5-mile rule of thumb, you know, drawing on the kinds of experiences no doubt that you’ve mentioned today, so there was a recognition early on that we needed to adjust some of the regulations in order to reflect that, certainly.

Mr Straw KC: The last question – and, my Lady, this is the disabled people’s organisations’ question – one of the workstreams you were responsible for was mitigating digital exclusion for vulnerable people. Disabled people experienced higher levels of digital exclusion than non-disabled people. See, for example, there’s a report by Watson and Shakespeare which is in the bundles.

Could you explain what work was done, if any, to mitigate the impacts for digitally excluded disabled people of the increased shift online of access to key information and services?

Mr Jeremy Miles: Well, I accept the point, the premise of your question. We recognised that very early on, and in the work in particular that I was doing, which I’m best placed to answer for this today, a concern that we had was that when we were seeking to provide that additional support across the government in different ways to a cohort of individuals who weren’t shielding but who we were expecting to isolate and had, you know, particular health needs or disabilities, we recognised that the good work that local authorities were doing right across Wales to try and advertise and signpost the support that was available often was depending on online channels of communication, and so we were concerned about that for the reason that you give.

So over the course of the weeks in which we worked through that workstream, we worked with councils to identify the best practice that many of them were already practising and to spread that. So some of that was around – some of them were even doing radio adverts, some of them were doing leaflet drops to people’s homes, some of them were working with the local voluntary councils to identify people who were disabled or had particular needs who were known to them, and trying to build a much richer means of communicating with individuals. But it was very challenging, and there were – there was good practice happening, the task we’d set ourselves was to try and spread that as widely as we could, and I think over that time we did make significant progress, though we were also conscious that there was a cohort of people who – which we were not able to meet, given the limitations we were all in society working under at the time.

Mr Straw: Thank you very much, no further questions.

Lady Hallett: Thank you, Mr Straw.

I think that completes the questions for Mr Miles.

Mr Poole: My Lady, it does. There’s just one correction to the record, but I’ll let Mr Miles go.

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

The Witness: Thank you very much, my Lady.

(The witness withdrew)

Mr Poole: My Lady, yes.

During questions from CTI to Eluned Morgan this morning, I think an incorrect INQ reference was given. The correct document was displayed, but the wrong INQ, so if I can just correct that: INQ000055222 was said; the INQ reference should have been INQ000388561.

Lady Hallett: I of course spotted that, Mr Poole.

10 o’clock tomorrow, please.

(4.12 pm)

(The hearing adjourned until 10 am on Wednesday, 13 March 2024)