Transcript of Module 2C Public Hearing on 16 May 2024

(10.00 am)

Lady Hallett: Mr Scott.

Mr Scott: Good morning, my Lady. May I call Sue Gray.

Lady Hallett: Ms Gray, I understand you have come specially to help the Inquiry, and I’m very grateful for your commitment; I appreciate how busy you must be at the moment.

The Witness: Thank you very much.

Ms Sue Gray

MS SUE GRAY (affirmed).

Questions From Counsel to the Inquiry

Mr Scott: Good morning, Ms Gray.

You provided the Inquiry with a witness statement that’s dated 19 March. Please ignore the date in the top right corner. It’s there on the screen, INQ000449439.

And if we can go to page 25, please, there’s your signature and there’s a statement of truth there, and that’s dated 19 March 2024.

As far as you’re aware, are the contents of that statement true?

Ms Sue Gray: Yes.

Counsel Inquiry: And are you content to rely on that statement in evidence to the Inquiry?

Ms Sue Gray: Yes.

Counsel Inquiry: If I can just run through your background, briefly. So as at April 2018 you were a director general, propriety and ethics, in the Cabinet Office. Prior to that, how long had you been working in the Civil Service?

Ms Sue Gray: I’d probably been in the Civil Service for about 35 years.

Counsel Inquiry: In April 2018 you then took up the post as permanent secretary to the Department of Finance on secondment?

Ms Sue Gray: Yes.

Counsel Inquiry: And then you left that post in May 2021, to take up the role of second permanent secretary in the Cabinet Office, with a responsibility for the Union and Constitutional Directorate?

Ms Sue Gray: Yes.

Counsel Inquiry: As far as the Inquiry’s aware, you are the only civil servant who had experience, at a senior level, both in Stormont and in Westminster during the course of the pandemic?

Ms Sue Gray: Yes.

Counsel Inquiry: So it’s that aspect that we’re particularly keen to focus on today and your ability to bring to bear your knowledge and experience of how both systems operate.

If I could start, please, with collective responsibility and your assessment of how collective responsibility operates in Northern Ireland compared to how it operates in Westminster.

Ms Sue Gray: Okay, thank you. I think it is very different. In the UK Government, the Prime Minister issues a Ministerial Code to his ministers, and in that Ministerial Code there was a very clear – a whole section, actually, on collective responsibility. It sets out very clear what is expected of ministers. That, you know, when they go to meetings they have an opportunity to be free and frank in those Cabinet discussions and Cabinet committees, but obviously those discussions stay private and whatever decisions are taken, you know, you roll in behind them. There are very clear processes about clearance of papers for those committees, and also about making announcements.

And that is very different to Northern Ireland where, although you have a Ministerial Code and you have the Pledge of Office, but actually it doesn’t talk about collective responsibility, so they’re quite different.

Counsel Inquiry: So in Northern Ireland, part of the Ministerial Code is to support and to act in accordance with all decisions of the Executive Committee and the Assembly. That would tend to suggest that after a decision has been taken, the ministers need to have some semblance of collective responsibility for those decisions; would you agree with that?

Ms Sue Gray: I do agree with that.

Counsel Inquiry: And it doesn’t appear that there is any equivalent sense of collective responsibility before a decision has been taken, so if ministers want to express a different view in public they’re free to do so; would you agree that that seems to be the approach to the Ministerial Code?

Ms Sue Gray: Yes, because it’s not specific.

Counsel Inquiry: Is the situation different, then, before a cabinet decision would be taken in Westminster?

Ms Sue Gray: No – well, obviously I’m not going to say that everything is perfect there, but, you know, there is – people do respect the process, and cabinet – you know, often issues get resolved in cabinet committees, not always at cabinet, but, you know, you don’t read about – you occasionally read about differences of views, but there tends to be a certain discipline.

Counsel Inquiry: Part of the different features of Northern Ireland is the power-sharing arrangement –

Ms Sue Gray: Yes.

Counsel Inquiry: – compared to Westminster with the –

Ms Sue Gray: Yes.

Counsel Inquiry: – government of the day. It’s right that you have had experience of working within the Cabinet Office when there was a coalition.

Ms Sue Gray: Yeah.

Counsel Inquiry: What was your experience of how collective responsibility worked in a coalition setting?

Ms Sue Gray: So I was in Cabinet Office between 2010 and 2015 for the Conservative/Liberal Democrat coalition, and in fact I was in Cabinet Office just before that, so whenever the – you know, part of the discussions to form a coalition government in – there was, like, five days in May – part of those discussions was to agree how the two parties would work. And actually the Ministerial Code from that time – I haven’t got it with me, but I think from that time – set out a process for collective responsibility within a coalition government, and actually provided for a process which was called something like – where you – where collective responsibility had to be set aside, because, you know, the two parties were not going to agree, and there was a – it was made clear that that would be exceptional.

Sorry, I can’t actually remember the whole words, but it was from that Ministerial Code in that period.

That process would be exceptional and that there was a process. So if the two parties were not going to agree, there was a special meeting and, you know, the Cabinet Secretary would be part of that meeting, and the process would be set out so that, I suppose, in a way, the two parties were encouraged to reach agreement when they could, which was the norm, which was the main, but where there was an exceptional issue where they were going to be – take different views, there was a process for that, and then they would be allowed to talk about their different positions.

Counsel Inquiry: So when you say they’re allowed to talk about their decisions, you mean in public?

Ms Sue Gray: In public and in Parliament. And I – you know, there was a particular instance, and I can’t remember either, sorry, what it was –

Counsel Inquiry: It’s not a memory test, Ms Gray, don’t worry about specifics.

Ms Sue Gray: But they both, both the Prime Minister and the Deputy Prime Minister, took different positions, and they both, quite unusually, made statements in Parliament on whatever that issue was. So there was a very clear process, but it was not something that was taken lightly.

Counsel Inquiry: As part of those competing statements, for example, did that lead to any breakdown in trust between them?

Ms Sue Gray: No, actually, I think as – you know, they demonstrated, I think, great leadership in how they handled those issues, didn’t break down in trust because actually it was a very honest and open and frank process.

Counsel Inquiry: As far as you’re concerned, in terms of all the provisions of the Ministerial Code, whether any additions, there’s no reason why a system like that couldn’t operate in Northern Ireland?

Ms Sue Gray: I’d like to think it could. I don’t know whether five-party – you know, when I was here I was in a five party work – you know, it was a five-party coalition. And, you know, we had tested it in two parties, two large parties, we had tested it, with very different views on certain issues. Whether five parties, you know – but I would like to think that you could set down a process similar to that.

The very rigour of having to produce a paper, you know, in the Cabinet Office to record the differing views and that balancing of options, I think – you know, it was a very helpful process.

Counsel Inquiry: Thank you.

Just also in terms of the Ministerial Code, my Lady asked the experts on Monday that leaking by ministers would be a breach of the Ministerial Code. Do you agree with that?

Ms Sue Gray: I … I think, you know, I think a lot depends on the severity of the leak, but I think if it is a serious leak then, yes, I think there would be a breach of whether it’s the Ministerial Code, the special adviser code or the Civil Service Code, depending on where it would come from.

Counsel Inquiry: Sir David Sterling, in his evidence, said to the effect of if somebody really wants to leak there’s not much you can do to stop them. Again, would that be something that you would agree with?

Ms Sue Gray: I think if somebody wants to leak, unfortunately I think they may find a way, but I think you have to set a culture, I think you have to set some processes. So another difference would be in – you know, for the Cabinet, and actually for a number of other meetings in UK Government, you don’t bring phones into the room, you know, you are made to leave your phones outside.

And personally I think that’s, you know, a helpful thing. I think it makes people focus on the actual discussion that they’re having. But also, you know, it is quite easy, I think, if you’re in a meeting and you’ve got your phone – you know, people could find it easy to, sort of, like, record what is happening, whereas actually if there are no phones …

It’s also from a security point of view as well: if you’re in sensitive discussions, you know, it is best to leave the phones outside.

Counsel Inquiry: And obviously –

Lady Hallett: Sorry, just before you go on, Mr Scott.

Ms Sue Gray: Yes.

Lady Hallett: Can I just emphasise that when I’ve been asking questions about leaking, I am not trying to clamp down on legitimate whistleblowers.

Ms Sue Gray: No, no.

Lady Hallett: I am talking about people leaking basically for political advantage.

Ms Sue Gray: Yes, and actually sometimes I think leaking to actually try either – and make sure people know what your point is that you’ve made or that you’re trying to steer – you know, you are trying to get – to influence that discussion. No, I appreciate that.

Lady Hallett: But on any view, it must surely be breaching something to –

Ms Sue Gray: Yeah.

Lady Hallett: – stream live a meeting of what would be the cabinet committee – the cabinet –

Ms Sue Gray: Yeah, I think that would be a terrible thing, and it would be seen for that.

And, you know, the other issue in UK Government is that there is an Independent Adviser on Ministers’ Interests, it’s called ministers’ interests, but actually they – you know, that person will often be asked to do an independent investigation if there is an allegation of a breach of the Ministerial Code. And there isn’t anything like that here, I don’t think. That may have changed since I’ve left.

Mr Scott: In terms of – we’ve heard about leak enquiries for example, how effective would it be to conduct a leak enquiry as opposed to, as you just were outlining, an independent figure who would be able to have some kind of oversight and overview? Are the two processes comparable or are there benefits of either?

Ms Sue Gray: So when I was here, I was asked to conduct a leak investigation. I think it related to some messages from somebody’s phone, which I think a journalist – I can’t remember the exact detail – had recovered or had seen those messages. You know, what you can do is you can – obviously, if it’s an official phone, you can check the official phone records to see if there – you know, if calls were made or, you know, around that time, you can obviously check any messages that they’ve also sent. And obviously on a personal phone you don’t have that opportunity.

And I think on the investigation we did, we used all of our internal resources to try to identify what had happened, but I think that sometimes an independent investigation, actually just the nature of an independent investigation can be fruitful.

Counsel Inquiry: Because one word that you said about leaking was about “culture”.

Ms Sue Gray: Yeah.

Counsel Inquiry: Who would set that culture about how ministers should behave in terms of approaching leaks and other issues?

Ms Sue Gray: So personally I think, you know, leadership comes from the top and I think – you know, so it’s the leadership, but I think also ministers are part of that leadership, so, you know, it’s hard to see why they would, you know, think that would be okay.

Counsel Inquiry: If I can then move to direction of civil servants.

So we’ve heard that there’s no power of the head of the Civil Service to direct any civil servant to perform a task in Northern Ireland. Does that cause you, in your experience of being a permanent secretary – did that cause you difficulties at times, that there was no, effectively, oversight of the entirety of the Civil Service about where resources should be allocated?

Ms Sue Gray: It is a very – obviously it’s a very different system here. You – you know, and I understand why that is, respecting all the various, you know, agreements and statute. But you very much, you know, the Civil Service Code which would have applied to me here in Northern Ireland was very much about me supporting the minister that I worked for, whereas in, actually, the UK Civil Service you support the government of the day, and –

Counsel Inquiry: Just –

Ms Sue Gray: Yes.

Counsel Inquiry: – to come in on that because your statement says to support ministers in –

Ms Sue Gray: Yes.

Counsel Inquiry: – developing and implementing the policies. Isn’t the Civil Service Code actually to support ministers and the Executive as a whole in developing those policies? It’s wider than just the minister?

Ms Sue Gray: I don’t know whether that version of the code was in place at the time I was here.

Counsel Inquiry: Right.

Ms Sue Gray: I think that may have been, I can’t remember quite rightly, but I think we had – you know, following the RHI report, I think we had an updated – there was probably work done on an updated code, so I think when I was here I think it was supporting the minister.

Counsel Inquiry: Okay. But that addition of supporting the Executive would mean that there is that look to supporting the global approach –

Ms Sue Gray: Yeah.

Counsel Inquiry: – of the government?

Ms Sue Gray: Yeah, I think that would be the intention and we had it in the UK Government, not in the Civil Service Code because that is very clear, but actually in the special adviser code, it was a form of words that we introduced in the coalition years, actually, about supporting the government as a whole.

Counsel Inquiry: Because whatever department, whatever job, whatever role civil servants perform, whatever political party their minister may be a part of, civil servants in Northern Ireland are obliged to act in an apolitical way?

Ms Sue Gray: Yeah.

Counsel Inquiry: And so they’d be supporting ministers whatever their department, whatever their role as well?

Ms Sue Gray: Yeah.

Counsel Inquiry: So why would it be problematic for the head of the Civil Service to have the ability to direct civil servants to perform a task or fulfil a role subject to any oversight from any ministers who were in place in terms of the democratic accountability?

Ms Sue Gray: I’m not sure, I mean, it just isn’t the way or it wasn’t the way that it worked here. The head of the Civil Service, you know, I think – you know, for example, would have chaired the NICS board, that actually, you know – where, you know, individual departments, if they had differences of views, it wasn’t – it just wasn’t a factor that the head of the Civil Service, you know, overrode those decisions or –

Counsel Inquiry: Yes, it may be the way that it wasn’t done –

Ms Sue Gray: Yeah.

Counsel Inquiry: – just in terms of your experience –

Ms Sue Gray: Yeah –

Counsel Inquiry: – of it working in Westminster –

Ms Sue Gray: Yeah, yeah.

Counsel Inquiry: It is beneficial to have the ability to direct –

Ms Sue Gray: Yes. And actually in Westminster that happens. You know, it is not unusual for the Cabinet Secretary, so, you know, to call together relevant permanent secretaries if there’s an issue to be discussed or to be resolved. That is a proper role for the Cabinet Secretary to get those permanent secretaries in the room to talk about whatever the issue is and to try to get matters agreed and resolved, and, if necessary, would actually, you know, take a view about a particular priority.

Counsel Inquiry: So then I come back to the question I had: would there be a problem – and if you can’t answer this without thinking more about it, then please do say – can you foresee any problem of, in Northern Ireland, the head of the Civil Service having the power to direct civil servants to perform a task or fulfil a role subject to the agreement of any relevant ministers that would apply at that time?

Ms Sue Gray: Not if it’s subject to the agreement of the relevant minister.

Sorry, just, sorry, I should have mentioned when we were talking about collective responsibility in the coalition years, I forgot to mention actually there was this – they had a quad, they had a quad meeting. I don’t know if you’re familiar with that?

And so you had the Prime Minister and the Chancellor, both of the Conservative Party, and the Deputy Prime Minister and the Chief Secretary, both of the Liberal Democrats, and they actually would meet, often, you know, weekly, I think, where they would talk about some of the issues that were facing them.

Sorry, I meant to mention that. And it was a really important part, actually, of making the coalition work effectively.

Counsel Inquiry: And that was aside from Cabinet meetings, that was a –

Ms Sue Gray: Absolutely, absolutely, and, you know, they would discuss and I think, you know, in a way setting aside collective responsibility was very much a last resort, but they would discuss some of those issues at that meeting.

Counsel Inquiry: You say in your statement that in Northern Ireland civil servants serve their minister rather than the government of the day, and that inevitably leads to an element of silo working.

When no ministers were in place, so prior to 11 January 2020, all the way through to 2017, did that same level of silo working happen?

Ms Sue Gray: I think so. I think though – you know, I joined probably halfway through the period without ministers, so joining in May 2018, and I think, you know, there is – there was a way of working which respected the individual departments.

Also, you know, departments were trying to follow whatever had previously been agreed by ministers when they were in office, so in terms of their policies and priorities, rather than depart from those, they were trying to, you know, follow what had previously been agreed.

Counsel Inquiry: So again coming back to culture –

Ms Sue Gray: Yeah.

Counsel Inquiry: – is it a cultural thing within the Civil Service that there seems to be this tendency to work in silos in Northern Ireland departments?

Ms Sue Gray: I think there is, there is definitely a culture issue about working in silos. I wouldn’t say it’s just for Northern Ireland.

Sorry –

Lady Hallett: Have you got the fly, Mr Scott?

Mr Scott: It landed on the microphone.

Lady Hallett: It’s taken a shine to me too, I’m afraid.

Ms Sue Gray: Sorry. There is also an element of silo working in the UK Civil Service, but I, actually reflecting on, you know, my own role when I went back to Whitehall, for the first, you know, six to nine months I was in the Cabinet Office, and then there was a machinery of government move and so some of my responsibilities went to the Department for Levelling Up, Housing and Communities, and I also became – you know, I also then held second permanent secretary there, so I was in two departments performing that role.

I think that’s quite hard to think that that would be possible to do here, and actually there was tremendous benefits from having – you know, being in two departments. You’re able to use the weight of both departments to get things done.

Mr Scott: You say that there is an element of silo working in Westminster. Is it more pronounced in Northern Ireland, do you think?

Ms Sue Gray: Yeah.

Counsel Inquiry: What do you think could be done to try to change that silo working?

Ms Sue Gray: So I do – I mean, I do think, you know, with the right – the approach and the culture, and I think that is from both Civil Service and ministerial leadership, to actually, you know, you can – you could actually have greater collaboration across departments.

Counsel Inquiry: Because plainly there’s the respect for the boundaries of the departments and the constitutional structures in Northern Ireland, but inevitably there are going to be areas where departments need to work together.

Ms Sue Gray: Yeah.

Counsel Inquiry: It doesn’t necessarily need to get to the level of reaching a cross-cutting decision but there does have to be departmental working at times; do you agree with that?

Ms Sue Gray: Yes, and I would say that in – you know, from my time here actually, you know, in the Covid period where the Department of Finance and I have to say, you know, I am actually hugely proud of the work they did, and actually for the whole of the Civil Service. There was great, there was collaboration across departments at that working level to deliver some of the support schemes, you know, to make sure that we were delivering the best and developing the best, and a lot of the transformation programmes that were happening were, you know, very much in collaboration with teams across departments. So it does happen, and I don’t want to give an impression that it doesn’t happen.

Counsel Inquiry: No, although I think in the corporate statement from the Department of Finance it sets out that there are times when there were schemes being created where actually there was going to be expenditure attached and the Department of Finance wasn’t involved at all.

Ms Sue Gray: Yes.

Counsel Inquiry: So there may have been working, as you say –

Ms Sue Gray: Yeah.

Counsel Inquiry: – but would you agree it doesn’t seem ingrained in the way that departments operate, that there is that natural tendency to work with each other?

Ms Sue Gray: Yeah, I think it is, yeah.

Counsel Inquiry: Then just the other aspect of your statement where you say, the absence of an Executive and Assembly:

“In that situation there was inevitably a tendency for government, in the form of NICS, to be reactive rather than proactive.”

Do you think that that tendency caused the government to react rather than be proactive in the initial response to the pandemic in January and February 2020?

Ms Sue Gray: I think it was a very – a really pressured time, I would say. You know, we had just had – the Executive had just re-formed. You know, ministers were walking in the door as, you know, this was – this was becoming clear, you know, what we would need to do. Relationships were still being – you know, relationships were being formed between ministers and the Civil Service, and, you know, the Assembly was now back, so, you know, lots of work, additional work, coming in. And so I – yeah, I think the reactive nature – it was a reactive nature.

Counsel Inquiry: But again, just pressing that a little further, that’s a cultural aspect, isn’t it, in terms of reactiveness rather than proactiveness, that’s your words in your statement?

Ms Sue Gray: Yeah.

Counsel Inquiry: And so while those features might not have helped any cultural change, it’s still probably a lingering feature of the absence of ministers that there was this lack of proactiveness in government departments?

Ms Sue Gray: Yes.

Counsel Inquiry: You left in 2021, had you noticed any shift in change from reactiveness to proactiveness prior to returning back to the Cabinet Office?

Ms Sue Gray: Could you just explain a bit more about what you mean by …

Counsel Inquiry: Well, it’s just – as you say in your statement, there was a tendency to be reactive rather than proactive. That was your assessment of the way that the Civil Service tended to operate. My question is: in that year and a half or so between when ministers returned and then when you returned back to the Cabinet Office, had you seen a shift in mindset from what you’ve identified in your statement was the mindset in January 2020?

Ms Sue Gray: Yeah. So I think that there had been movement, and I think, you know, a greater willingness and opportunity to perhaps, you know, share and seek information from, you know, and work with others in other departments.

So, for example, you know, in the Department of Finance we had probably for the first time actually reached out in a very proactive way with the Treasury, with, you know, the finance minister forming, you know, really strong relationships actually with the Treasury, with Treasury ministers, the Chief Secretary in particular, and I think that enabled us to look to be more proactive and to think ahead in a way that perhaps, you know, we hadn’t done previously.

Counsel Inquiry: Then one of the aspects that the Inquiry’s been considering is data retention.

Ms Sue Gray: Yes.

Counsel Inquiry: And we’ve been looking at this concept of IT Assist, and the IT Assist fell within the Department of Finance; that’s right?

Ms Sue Gray: Yeah.

Counsel Inquiry: What’s your experience of document retention by civil servants and/or ministers in Westminster compared to in Stormont?

Ms Sue Gray: So when I – when I arrived here, actually I felt that, you know – obviously within my own office, you know, document retention, you know, there was a very clear process for logging and recording documents, and, you know, emails and that. And it was actually – it was quite a time-consuming operation, so – and then I think if – you know, when you’re, you know, searching for material, it just wasn’t as intuitive as, you know, you might think, as well as I think in Whitehall and Westminster there had been quite a lot of work done around record-keeping and a fairly big review, which I think ended up with a cloud-based, you know, system, which was perhaps easier, and I know that – you know, I encouraged obviously the department to talk to the Westminster team that were actually – had done that review, so that we could try to, you know, see if there were improvements that we could make to make it, I suppose – you know, it was quite – it was very resource-intensive to record – you know, obviously, you know, my office recorded it, but all the material. But I think it was very resource-intensive. So how could we make it much easier, that rather than having to log on, you know, you just sort of tick something and it goes into the filing system.

Counsel Inquiry: Do you think that because it was so resource-intensive that maybe people were less likely to put everything on there that they otherwise would if it was a simpler system?

Ms Sue Gray: I think I was very fortunate in that I had somebody who was virtually full-time doing this, and I suspect, you know, others may not have had that, that time.

Counsel Inquiry: Then one final question, Ms Gray: do you consider there are any structural changes which could be made to the government in Northern Ireland to make it more responsive to an emergency?

Ms Sue Gray: I think this, I suppose, this comment, which I think is actually on the part of both Northern Ireland and the UK Government, I think there is, there would be real benefit in Northern Ireland, and in fact the other devolved governments, in Scotland and Wales, being a – involved in discussions that take place in Westminster from a very early stage. Not – you know, sometimes unfortunately, you know, they are not brought in at the earliest stages of development, and it – you know, conversations happen a bit further down the road, and I think that’s quite difficult sometimes for the devolved governments, who will not have the capacity and resources as the Westminster government, to be involved.

So I would say that I think both – and I think then the devolved governments as well, when – if they are invited to that sort of approach, that they need to embrace it as well. So I think both, both governments, I would say, could be – yes, could make changes.

Mr Scott: No further questions, thank you.

Questions From the Chair

Lady Hallett: Ms Gray, one of the problems that may be identified in some of the submissions about to be made to me is that the Department of Health was the lead government department – I’ve got used to the lead government department model now, whether it was appropriate in a civil emergency is another matter. They didn’t suggest triggering what I’m obliged to call NICCMA, Northern Ireland’s civil contingencies management arrangements. Anyway, they didn’t trigger the emergency arrangements.

Ms Sue Gray: Thank you very much.

Lady Hallett: I do hate acronyms.

Anyway, they didn’t trigger them because, I suspect, given the answers that I was – I heard from Sir David Sterling, they didn’t have the resources. Actually, it wasn’t Sir David, it was somebody else. Anyway, they didn’t have the resources. In other words of staff. So by triggering NICCMA they were taking staff away from the work they say they were doing.

Ms Sue Gray: Yeah.

Lady Hallett: And because the Department of Health didn’t trigger or suggest that NICCMA be triggered, nobody else did, because they’re all working in silos.

Can you think of any possible solution to that kind of problem, apart from more staff, obviously, but …?

Ms Sue Gray: Yeah, so I think in cabinet – yes, sorry, in the Westminster model, the civil contingencies, there is a Civil Contingencies Secretariat which is, you know, hugely influential, I think, and it sits in the Cabinet Office, and it clearly, you know, it reports directly to the Cabinet Secretary and therefore to the Prime – you know, so it’s got an authority, it has – and it is taken, you know, it is a hugely serious body that is just – you know, can be stood up immediately. And I think it is, you know – people, you know – it is recognised for what it is.

In the Northern Ireland model, which I think the – probably the Executive Office probably has responsibility for civil contingencies, and I don’t think the Executive Office has a similar power, I suppose, or function as the Cabinet Office equivalent.

So I think that, you know, for future, in a way you need to, sort of, take it out a little bit, probably, if it’s – you know, if it’s in a particular lead department, if they are thinking about the resourcing and why they wouldn’t do it, it would be – there should be another way of actually making sure that that gets triggered, and I think there is a role for the Executive Office.

Lady Hallett: Thank you very much. I’m very grateful. Sorry, I knew there was another thought going through my head. Does it in part go back to what I heard about in Module 1, I think, which is the way in which resilience and preparedness for civil emergencies is treated within all sorts of governments, not necessarily just in Northern Ireland –

Ms Sue Gray: Yeah.

Lady Hallett: – and that basically you may have ministers quite interested in ensuring we’re properly prepared for a terrorist incident, say, a malicious threat –

Ms Sue Gray: Yeah.

Lady Hallett: – as opposed to a natural hazard, but natural hazards aren’t taken quite as – they may be taken seriously by some, but – by other ministers, not – is it giving some oomph behind resilience and preparedness?

Ms Sue Gray: I think so. I think it’s giving oomph and I think it’s

giving authority and actually recognising that it is

a really essential part of government, and, you know,

making it recognised that actually people want to go and

work there. People want to do this. It’s seen –

they’re valued for doing it. But I think if, you know,

it stays within a line department, as we would call

them, then I don’t think it would get the importance or

the recognition that it deserves, which is why, if the

Executive Office here, I think, had that

responsibility – and was given the authority to take it

forward.

Lady Hallett: Thank you very much indeed. I’m really

grateful for your help.

The Witness: No, thank you very much.

Lady Hallett: I am sorry it was such a short – well, maybe

you’re not sorry it is a short period.

The Witness: No.

Lady Hallett: Thank you so much for coming.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: Right, I think that now completes the

evidence, and we’re on to closing submissions.

Ms Campbell, I think you’re up first.

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

Ms Campbell: My Lady, history has taught us that whenever disparate groups of people are thrown together in grief, in shared loss, but motivated by an innate sense of injustice because their loved ones have died needlessly, or prematurely, and they know innately that something has gone very badly wrong, those people are generally proven to be all too right.

That may be true of the bereaved in this jurisdiction more than any other. It is certainly true of the Northern Ireland Covid Bereaved Families for Justice.

But it’s also true that for so many families the path to understanding the truth of how their loved one died is often painful and bittersweet, and that has certainly been the case for the last three weeks. Although our members who attended these hearings or followed on line by other means were forewarned of much of the evidence that they would hear, hearing it so starkly outlined has nonetheless been very, very difficult. Every omission or oversight or failure represents a fork in the road, a missed opportunity that had it not been made might mean the person they loved and lost would still be here or might mean that families would have been comforting loved ones in their death, or they would have been given the sendoff that they so deserved, and it would certainly mean that the grieving process would have been a great deal easier.

And, my Lady, this past three weeks has been littered with oversights, omissions and failings.

The impact of the three-year absence of our Assembly, the years of underfunding of our health and Civil Service, single year budgets, leaving departments ravaged and worn, the silo approach of the Department of Health and other departments, the failures of the TEO to step up and step in, the unedifying dispute as to which department was to take the lead, the failure to stand up NICCMA to ensure a cross-governmental approach, the failures in test, trace and isolate, the prolonged absence of a Chief Scientific Adviser, the apparently boundless power of our Chief Medical Officer, who wore far too many hats, the failures in leadership from Westminster, the devaluing of an all-Ireland memorandum of understanding, the failure to properly consider in advance of or during the pandemic the need to protect our older people and those who were medically vulnerable, or indeed at any stage to consider the unequal impact of NPIs and other measures, the reckless policy of hospital discharge, the attendance of ministers at the funeral of Bobby Storey, the consequence of that attendance upon public messaging and public confidence, delays in decision-making in autumn 2020 unquestionably leading to that fatal spike in January 2021, the deliberate, egregious and abusive use of the cross-community vote, the leaks, the spins, the sectarianism, the political sniping, the wiping of phones and other devices, the corrosive, mean and hostile WhatsApp chats. Unfortunately I could go on.

At every turn the evidence has been devastating. Dysfunctional, it most certainly was. Time doesn’t permit an examination of it all in this closing address and we will of course follow up with greater detail in writing, but allow me to touch on some.

It’s entirely right that I should acknowledge at the outset that in January 2020 we had a fledgling Assembly, ministers, officials, advisers and support staff, all keen, some green, all determined to get to work on the issues of the day, not expecting that that issue was to be a fast-approaching global health pandemic.

While doubtless they were willing to put in the hours as they increasingly, albeit belatedly, realised the weight of responsibility that lay on their shoulders, they were caught unaware and hopelessly ill prepared.

You have been told repeatedly that everybody was motivated for the right reasons and that, my Lady, may well be true, but the road to ruin is paved with good intentions, and good intentions, my Lady, is no substitute for prompt and decisive action, political maturity and good leadership.

But from the outset, decisive action, political maturity and good leadership were in remarkably short supply.

My Lady, we know the warning signs had reached Northern Ireland by, at the latest, 25 January, when the CMO received the Professor Woolhouse email. That email chain made clear that the statistics were grave and unlikely – and likely to be particularly grave for older people and those who were medically vulnerable.

It was or should have been, you were told by your experts, obvious at an early stage that a cross-governmental response was required, and yet it was to be almost a full eight weeks before that realisation was reached in Stormont. That was precious time that we couldn’t afford to lose.

We have witnessed, both in writing and in evidence, the unedifying finger pointing as to whose fault that might have been. The Department of Health, determined to take the lead at the time but working in a silo, would like it to be recorded that the Executive Office could have stepped up and stepped in at any time.

That is undoubtedly correct. It was the First Minister and deputy First Minister who rejected the invitation to Exercise Nimbus, it was they who were demonstrably content to let Health take the lead, who thought of this as a health pandemic until it was too late.

The protestations of the First Minister and deputy First Minister, that they were out of the loop or that the political structures in Northern Ireland militated against them getting involved, must be viewed against the reality that they did not try to get involved. They did not attempt to peer over the walls of the silo nor ask for information to be brought to them.

But it’s equally true that Minister Swann and Mr Pengelly held their grip too tightly for too long. Why wasn’t there a report back after Nimbus directly to the First Ministers pointing out that the response needed to be cross-governmental and preparations needed to be stepped up? Why didn’t they, as the letter of 6 February 2020 advised, trigger central crisis arrangements when Covid arrived on our shores at the latest by 27 February 2020, or, as you queried, my Lady, perhaps even before that date still?

The response from Mr Swann and Mr Pengelly of “Well, the TEO didn’t ask” or “Well, they could have triggered it without us asking for it”, is immature and self-justifying.

What about the Civil Service? Officials had been in post when ministers were not, senior roles occupied by experienced civil servants such as Chris Stewart or David Sterling, from whom you heard. They gave, my Lady, deeply dissatisfactory evidence. Mr Stewart knew, and had been repeatedly forewarned by Bernie Rooney about the dire state of civil contingencies. The CCPB was, she told him in autumn 2019, not fit for purpose. Yet with a pandemic looming throughout February 2020, it appears it was business as usual for Mr Stewart.

You will well recall the paper presented to the Executive Office board on 25 February which seeks a review of civil contingency arrangements, remarkably, and I quote, “for an unforeseen emergency event or situation”, in which Covid gets a single mention, and even then only in passing.

We expect you will easily reject his account that this was an example of forward planning for a time after Covid while work on the pandemic preparedness was well under way. Rather, there was none of the requisite sense of urgency to build up civil contingencies for the threat that was very much already upon us.

Sir David Sterling’s evidence provided no more comfort. Insistent though he was that there was “ongoing engagement” and that, as he put it, there would have been regular reviewing of things, on a daily basis, there is, regrettably, precious little to show for that. It appears that, notwithstanding the accepted need for cross-governmental preparations, the answer to Ms Dobbin’s repeated questions as to who was over all the plans, who understood how they intersected with each other, who had that role, remains elusive.

Mr Stewart might have had some responsibility for that at early stages, liaising with permanent secretaries, Sir David perhaps later, neither of them at any stage advising ministers that the time had come for a meaningful cross-governmental response.

The proof, my Lady, comes on or about 15 March, when Karen Pearson is approached over the course of that Bank Holiday weekend and has to start the strategic response from scratch, without so much as a Post-it note from her colleagues to go on. To her credit, she gets to work, and in that environment, that had been without structure until that point, it’s not difficult to understand why the deputy First Minister, Ms O’Neill, described her arrival as a breath of fresh air.

Sir David was keen to stress that the Civil Service hadn’t been asked to activate NICCMA until on or about 15 March, offering with it what he termed a concession that it might have been done a few days before.

My Lady has already seen there has been much discussion about whose responsibility it was to trigger NICCMA. We saw the NICCMA protocol as recently as yesterday. We see the details of the list of those who can request for it to be activated, lead government department, senior PSNI officers and so on. The list does not include the Chief Medical Officer, and yet, according to Sir David, it was the Chief Medical Officer who asked for NICCMA to be activated on 14 or 15 March. The Chief Medical Officer.

If that is correct, then we owe the CMO a debt of gratitude for at least someone finally got there. But why was it not the Department of Health, the Minister of Health, the Executive Office themselves? And if it was the CMO in what capacity did he do that: in his role as a senior manager within the Department of Health or as an independent medical adviser for a nation in the grips of a pandemic?

Of course, my Lady, that was not the only occasion when the role of the CMO appears to stray far from a job description, if indeed there is such a thing. It must of course be acknowledged that the CMO worked tirelessly. Perhaps more than anyone we can see the product of his work through the thousands of pages of disclosure, of emails, of directions, of attendance at meetings at all levels, of statements that he produced. And it’s important that that is acknowledged.

However, you will want to consider carefully Bernie Rooney’s account of the CMO’s telephone call to her on 30 January, when she responsibly, fully, and on the instructions of her manager, sought to brief the First Minister and deputy First Minister on the COBR meeting the day before.

Was it really for the CMO to intervene in Ms Rooney’s Executive Office function? Even if he did think that the briefing prepared by Ms Rooney and approved by the Deputy CMO was so inadequate as to require his amendment, was there no way of achieving that without asserting that all future Executive Office submissions must personally be signed off by him?

My Lady, given his role in the Department of Health and the much prized departmental independence, is that not a clear conflict between his departmental role and his independent CMO role?

On 16 March in the Executive meeting it was noted by Baroness Foster that schools would close “when the CMO advised it”. A seismic decision delegated to the CMO. It was the CMO who signed the MoU, the memorandum of understanding, with the Republic, a document that he was – that was the product of a meeting between heads of state just a few weeks prior, and which really did call for cross-governmental buy-in.

Is it because that MoU was a CMO or Department of Health-led document that it appears that it failed to deliver what it promised in a pandemic that everyone seems to agree called for a five-nation, two-island approach?

My Lady, you asked Mr Poots about who would take important decisions about the safety of mass gatherings to be permitted to proceed in the North? In trying to understand where the power to take that kind of decision that would impact on people’s lives would lie, you asked him, “Well, would it be the First Minister or the deputy First Minister?”

Mr Poots was ultimately unable to help in his evidence. But the answer might, surprisingly, come in a text message between the CMO and the CSA on 23 June 2020, in which the CMO indicates that Mr Poots had connected with him to discuss a drive-in concert planned for 3 July. In fact, open source media reports indicate that there was a three-day series of music events planned in the Titanic Quarter. It appears from the message exchange that Mr Poots was lobbying the CMO to ensure that those concerts would proceed, including with options for patrons to mingle outside their cars.

My Lady, that a senior minister in the Executive Office was turning not to his Executive colleagues but to the CMO for decisions of that nature is staggering, and it lays bare a problem in our power structure, one to which we will return in writing.

My Lady, exactly a week after Mr Poots’ plea to ensure those concerts would proceed, on 30 June Sinn Féin ministers attended the Bobby Storey funeral. The sight of that funeral, played and replayed as it was on TV screens, was breathtakingly insensitive. It caused hurt, anger and outrage to the bereaved and all who stood with them and behind them.

While apologies have been fulsome in hindsight, it remains staggering that those who attended did not have the foresight to understand the hurt that they would cause to the public and to the Executive, or if they did, they attended regardless. It should not have happened and its consequences were grave.

There are no statistics available as to the impact of that display on public behaviours, but coming out of restrictions and coming into summer 2020, it’s entirely reasonable to assume that some members of the public, angered by the sense of “one rule for us and another for them”, cast aside any caution and lost confidence in the Executive in a way that was never to be fully restored.

The immediate cessation of public press conferences delivered a blow to what had been a united presentation by the Executive, which we know is relatively rare in any circumstance. Even when those press conferences resumed in September, a line wasn’t drawn under it, and we have seen in this room that it continues to infect relations.

You pushed Sir David Sterling on this, my Lady: what was the impact of that attendance on the functioning of the Executive? There was, he told us, a discernible chill in relations. The public manifestation was a cessation of press conferences, but actually, he said, it was business as usual behind the scenes.

My Lady, I don’t know if you expected a different answer from Sir David, but to those of us from here, that answer was entirely predictable. Grand public gesture politics, all the while business as usual behind the scenes.

My Lady, Northern Ireland Covid-19 Bereaved Families for Justice are tired of it. They had every right to be angry at the Sinn Féin attendance at that funeral. Angry they were and angry they remain. They had every right to expect that in mature political discussions that behaviour would be thoroughly condemned. But they also had every right to expect that mature political leaders would find a way through it, with minimal impact on public confidence and the work of the Executive.

We know, however, not least from the evidence of Baroness Foster yesterday, that it continues to infect political discussions into autumn 2020 and beyond.

My Lady, Northern Ireland Covid Bereaved Families for Justice and many of those who stand with them are tired of political point-scoring being valued above political progress.

It’s a shocking further indictment of our Executive that, having largely drifted towards decisions that were ultimately imposed on them from Westminster in March 2020, when the time came in autumn to actually make Northern Ireland specific decisions, supported by an enhanced understanding of this virus as well as Northern Ireland specific data and recommendations, which we know was not available in March, the Executive got it so very, very wrong.

We saw yesterday, so expertly developed by Ms Dobbin, the information that was available to the Executive, the advice that was given, the decisions that were called for. We know that the position of the First Minister in particular, written in a letter to the head of the Civil Service as far back as 29 March 2020, but publicly stated often thereafter, was:

“We must follow medical and scientific advice at all times. Politics should play no part in the decisions made.”

A laudable aim, but one that was not to withstand the test of time.

My Lady, the facts of autumn 2020 have been rehearsed and need no elucidation. The deliberate and orchestrated deployment of a cross-community vote by the DUP in an Executive meeting that was not going their way was, as Minister Long put it, an egregious abuse of power. They had no choice, we’re told, but to do so. That was claimed as recently as yesterday.

They had a very simple choice, my Lady. They could have chosen to respect the rights of the majority of their colleagues, to unite across departments, across communities, across political persuasions, but in opposition to them. But they couldn’t allow themselves to be outnumbered, even in the face of public health measures that were strongly recommended and were to prove all too necessary.

My Lady, the first responsibility in a democratic society is to protect and safeguard the lives of its citizens. It’s impossible to divorce that unedifying debacle in November 2020 from the chaos in the run-up to Christmas and from that shocking spike in deaths in early 2021.

Standing in stark juxtaposition in autumn 2020, in our mind’s eye we can see Marion Reynolds standing on that patch of grass outside Marie’s window, watching her aunt fade away before her eyes, unable, even with her own professional experience, to navigate the care system to ensure her aunt got the level of care and support that she both needed and richly deserved.

And those of us who can only see that in our mind’s eye are the lucky ones. Too many others recall being in that situation, painfully disempowered and yet accepting, because they were told it was for the greater good, not willing to go into the homes of their elderly parents who needed their support so much, staying away from hospitals where loved ones were dying.

From the very onset of the pandemic, older people and the medically vulnerable were failed. The discharge of hundreds of people from hospitals to their own homes, to care homes, to our communities, was carried out, we have learned in this module, without meaningful or effective pre-planning on how best to protect older people or those who rely on residential or domiciliary care, and it was carried out and put into practice without any input from the Chief Medical Officer or any consultation with the Chief Scientific Adviser.

As a policy, it has been variously described to you as very clearly “potentially disastrous” and “quite reckless” by Mr Lynch, a policy got badly wrong by Mr Poots, and a failure by Lord Weir.

My Lady, it was all that and more. While of course the discussion of this module focused on care homes, it must be remembered and acknowledged that the reality was much broader and the ramifications went right through our communities. Deaths at home, deaths in hospital, deaths of children, deaths of those with disabilities, must not be overlooked in this module or indeed in future.

My Lady, in conclusion, we commend Ms Dobbin King’s Counsel and her team who have undertaken a Herculean task in these last three weeks, but even Ms Dobbin could only scratch the surface of what was happening and what was not happening here in Northern Ireland, not for want of skill or want of determination but for want of time. At the end of just 11 days of evidence, in some respects we have watched the trailer to a film. We, the press and the public, have had a glimpse at the highlights and the low points of the Northern Irish Covid story, but the real film, the longer, the more detailed story, remains to be fully understood.

To some extent we will return to it in future modules, but long before we get together again in the autumn, it really is for our newly-formed Assembly, at this time, in 2024, to get to work, to consider for themselves the full story, to understand and to learn from those scenes that have been and have not been played out in these hearings, and to start to put right the wrongs, the errors, the gaps and the oversights, so that no longer can it be said that our government was so unprepared and so ill equipped for a health pandemic or any other equivalent emergency.

My Lady, you have now reached the end of Module 2. We hope you have enjoyed your time in Belfast. You will now, we know, begin to draw together the evidence that you’ve heard, to reach your conclusions and to draft your recommendations. And we await them eagerly. But in relation to many of the issues, there is no need for our administrative and political leaders to wait or to delay. Many gaps have been exposed, promises to learn lessons have been made from that seat in that witness box. There is a great deal of work to be done by those who represent us.

If I may borrow the words of the late Mo Mowlam, a woman who made an enormous impact on this part of the world, the message from the Northern Ireland bereaved to those who represent us is, now, “Bloody well get on and do it.”

Thank you.

Lady Hallett: Thank you very much indeed, Ms Campbell, I’m extremely grateful, thank you.

Mr Friedman, I think you’re going next.

Submissions on Behalf of Disability Action Northern Ireland by Mr Friedman KC

Mr Friedman: My Lady, we act for Disability Action Northern Ireland. It is a disabled people’s organisation, or DPO, run by and for disabled people, and we want to thank you and Ms Dobbin and her team for all the work you’ve done here.

Given everything you have heard about the admitted extent to which disabled people were overlooked during the pandemic response, it’s important to recall some basic features of the civil rights of disabled people that do not yet have a home in Northern Ireland.

As my Lady, knows, DPOs are to be distinguished from charities and other organisations that represent disabled people rather than enabling them to represent themselves. DPOs take issue with the feature of pandemic policy, however well intentioned, which focused on the vulnerable without consulting disabled people because in practice it enabled disabled people to be lost even when decision-makers believed that they were being seen.

That is a societal problem beyond Northern Ireland. Normal personhood is assumed to be autonomous, independent, and self-sufficient. Disabled people are treated as other, charitable objects, and recipients of a narrow concept of care. This notion of vulnerability is prone to be highly transactional, hence in pandemic crisis all of the four nation governments, including this one, focused on getting benefits paid, setting up telephone lines, sending letters to people who were on lists and creating hit and miss food parcel distribution.

DPOs take issue with the label of the vulnerable because it detracts from the requirement to create systems that are more responsive to the plurality of the human condition and the value of our relationships. We are all vulnerable at times, but it is systems of political and economic asset distribution that make some of us more vulnerable than others.

Which brings us to Northern Ireland. This is a place where the moral convictions of politicians are strong, and the connection to their constituencies is particularly embedded. The narratives that guide them and the prisms through which they see the world are specific and at times fundamentally incompatible with those they now sit alongside. But in their own way, each of the witnesses you heard genuinely struggled with the moral dilemmas of the pandemic’s wicked choices.

We mention those features because it is a puzzle that in a place of such orientation towards its communities, where legal organisations, universities and civil society groups have striven to engage with the possibilities of human connection in spite of conflict and dissent, that Northern Ireland failed to deal more effectively with this crisis and particularly failed to be more inclusive in its recognition and protection of disabled people.

As to why that was so, the DPO offer the following answers: first, a basic feature of government should be the ability to respond to emergency, but in Northern Ireland civil contingency organisation was weak, even in the context of the problems of disaster management across the UK. This Inquiry has laid bare that the Civil Contingencies Act 2004 creates only superficial duties on local government and blue light responders, but no duties on central government and no mechanism to audit local readiness. It left the state unconscionably unprepared for a pandemic. Further, until lessons learned after the 2017 Grenfell Tower fire, that system was starkly lacking in human-centred focus and was distant from the needs of ordinary people.

In Northern Ireland, the legal framework is even lighter. Only the PSNI and the Maritime and Coastguard Agency are statutory responders. Neither the Executive Office, the Department of Health or local government are subject to enforceable duties. The evidence makes clear that the whole so-called system resided in a civil contingency framework last updated in 2011 that neither compelled planning nor checked it. Its governmental home was an understaffed and underskilled policy branch in the Executive Office, with no hard power to compel other departments to do anything.

In this situation, people like Karen Pearson had little option but to take the Operation Yellowhammer no-deal Brexit planning and apply it to a whole-society humanitarian Covid crisis. The foundational Executive steps, including Pearson’s paper on 19 March 2020, were not organised around human-centredness at all. They concerned maintaining the movement of people and things. They used the civil contingency language of business continuity and sectors, which does not fit easily with socially marginalised parts of the population.

Yellowhammer was a bad fit for Covid. There is no poor people’s sector or disabled people’s sector, and when the notion of sector was used in this context, it essentially meant the traditional charities focused on clinical vulnerability and underscoring the medical model of disability. Hence the single dedicated ministerial meeting with equality groups during the first six months of the pandemic was with a group of local charities concerned with shielding. That was on 15 July 2020, and attendees included the British Heart Foundation, Macmillan Cancer Trust and Action on Mental Health.

The stakeholders brought together by the Executive Covid Taskforce after December 2020 combined the business sector, faith leaders and somewhat random groupings around sport, marching bands, transport and freight. All of these organisations are relevant actors in social partnership in a pandemic, but they cannot provide for disabled people’s perspective or lay claim to disabled people’s rights.

The second reason why Covid decision-making floundered for disabled people in Northern Ireland lies in the deliberate design of its constitutional arrangements that have produced peace but are yet to produce good government.

Everything that my Lady has learned, across all four of the government decision-making modules indicates that this is a structure that will definitely not serve socially marginalised groups and especially disabled people, however much the governments actually want to do so.

There needs to be a lead department and department focus on disabled people, but the formation and delivery of policy has to work across multiple departments in health, communities, education and finance. Until Northern Ireland has that capacity for joined up government, it is destined as a state to be stuck with barriers and attitudes that work against disabled people, as turned out to be the case here.

Starting with the centre of government, from the Executive Office disclosure and admissions of individual witnesses we can see that Nuala Toman’s critique that disabled people were largely invisible during Covid decision-making and their voices unheard, is a literal statement of events. It is a step towards change that witnesses across the political and Civil Service establishment were all so emphatic in their evidence that oversight of disabled people and other marginalised groups was a key failing, but anyone who seeks to console themselves that this was due to the pressures of time and uniqueness of the crisis is still not getting the problem.

As time passed during 2020, organisations in other parts of the UK and Northern Ireland produced key reports on the disproportionate impact of the pandemic and countermeasures on disabled people.

My Lady, these reports, including the work done by Disability Action, sponsored by the Northern Ireland Equality Commission, simply did not register at Executive Office level, and made no impact at all on any cross-government strategy.

The establishment of the Executive taskforce ought to have provided correction, but it did not. Disabled people were not mentioned at all in its Moving Forward strategy, published in March 2021, and disability is mentioned only once in its Covid recovery plan of August 2021 with regard to improving skills to advance employment.

The Inquiry has spent time establishing how cross-government strategy was delayed in starting. For disabled people during the pandemic, it never began.

My Lady, in all other jurisdictions you have studied, the need to take steps to immediately locate planning at the centre of the Executive and integrate health department leadership into a broader whole-society government response was taken as axiomatic, but in Northern Ireland it was a problem.

It is difficult to understand the tensions between the Department of Health and the rest of the government without understanding the reasonable apprehension in Northern Ireland that if you allow Executive Committee control over decision-making, it will likely run aground due to political disagreement, and so hoarding power in the Health Department was seen as the least worst choice to make Covid political decision-making viable.

But the Department of Health, as Robin Swann accepted, left its nation in a state of serious risk, because it did not ring the alarm bell early or loud enough to prompt ministerial colleagues to stand up whole-society preparedness.

Not only was there a lack of communication with other departments and the Executive Office, but within the department itself. Mr Swann was not aware of advice given by his own departmental officials in February 2020 regarding the standing up of NICCMA or of the contents of letters sent out from the Department of Health signed off by the CMO.

The deeper flaw, however, lies in the state of post-conflict politics and political institutions, and disabled people were failed by both. Historic party political narratives and perspectives still held their clutch, even at the expense of available evidence, and at key moments within this crisis they came to the fore. There are two very clear examples.

Sinn Féin, suddenly and without any consultation, calling to close all schools in the North because the South had done so was a folly, not just because no one had begun to think about who would look after the children, including those with special educational needs, but because emptying the schools without lockdowns, furlough schemes or wider planning could actually contribute to spreading the virus and could have put lives at risk.

Likewise, when the DUP used a cross-community vote to defeat the proposed two-week extension of the circuit-breaker that would have protected all communities, they did so contrary to a crescendo of advice from SAGE and the CMO that Covid in Northern Ireland was the highest in Europe, and they did it on the basis of anecdote and empathy towards hairdressers and café owners and the like, claiming with utter cynicism that this was a matter of significance to constitutional minority rights.

In both these disputes, disabled people were not considered, let alone served by the politics. Standing back, institutionally the multiple tensions of forced coalitions allowed for heartbreaking irresponsibility in political leadership. TEO and the Executive Committee in the first wave effectively abdicated decision-making to a Chief Medical Officer ensconced in an overheating Department of Health, and in the second wave the Executive Committee and its voting process failed to protect the Department of Health when it really mattered.

My Lady, this was the nadir of the peace process. Elderly people who survived the Troubles died. Disabled people who do not enjoy proper enfranchisements under this political system died and otherwise suffered.

As to Nuala Toman’s critique that “We are not seen and we are not heard”, the fundamental problem for disabled people is that no government department or programme of government in Northern Ireland has ever lived long enough for any part of the state to take responsibility for their interests and their rights.

Under the New Decade, New Approach document, the Department for Communities was given the leadership role on disabled people but received it too soon before the pandemic to lead in any meaningful way.

Although Minister Hargey drew attention to the steps that were taken to support disabled people, she admitted that these were insufficient without proper consultation with DPOs. It is clear that the essence of the measures was paying benefits on time and setting up helplines that worked for some but not for all. The two ministers in the DFC role do not appear to have raised the position of disabled people under the pandemic response in the Executive Committee or the Assembly at any time.

Hargey’s initiative to expand the emergency leadership group beyond established stakeholders in business and unions did not lead to the inclusion of Disability Action or other DPOs even though they knew of the organisation, its work and staff.

In part this was a structural problem. The departmental corporate statement indicates that there was no single officer or unit with overriding responsibility for the needs of disabled people, but it was also a cultural problem. While the DFC did not consult with DPO at all on the risk posed by the virus or the NPIs, let alone on the design of any mitigating measures, the answers given by the minister in oral evidence also portrayed a lack of understanding as to how fuller engagement might work. She mentioned two disability-related organisations, the NOW Project and Inspire Wellbeing. Neither of those groups are DPOs.

They are also organisations working only within one aspect of disability, learning disability and mental health, and in answers to questions from CTI, Minister Hargey cited DFC’s work with Advice NI as an example of co-production. Advice NI is a general charity providing advice on benefits, personal and business debt, tax credit and related matters. It’s effectively a CAB equivalent, plainly not a substitute for meaningful structured consultation with disabled people.

The DFC has promised a definitive strategy for disabled people, and it said it would be ready for December 2021, but due to the further collapse of power-sharing there is still no programme of government that might begin to deliver on the promise of the Good Friday Agreement to supplement the Human Rights Act by creating a bill of rights to deal also with disabled people’s entitlements under international law.

Finally, the Covid state failed its disabled people because by comparison with the other parts of the UK, government in Northern Ireland was the least focused on disabled people’s issues. Ministers and civil servants here need to feel the embarrassment of comparison.

In Wales, government officials made contact with DPOs by mid-March 2020 to seek their planning advice. Regular fortnightly meetings between DPOs and the Minister for Social Justice started by April 2020. Welsh Government then sponsored a DPO-led inquiry into the impact of Covid measures and thereafter established a disability taskforce to lead on recovery and a whole-society disability strategy.

In Scotland, a strong tradition of social engagement with disabled people faltered in the first weeks of Covid, albeit regular meetings with DPO started with ministers and civil servants in May 2020 and went on for several months. In Scotland, the Social Renewal Advisory Board reported as early as January 2021 and contained two major figures in the Scottish DPO movement as well as ministers and senior civil servants.

I’m going to say, even in England, which the DPO have strongly criticised, senior ministers dedicated meetings on the distinct impact of Covid on disabled people in May, October and November 2020, whereas in Northern Ireland the issue of massively disproportionate impact on disabled people did not cause the Executive Committee or even a special meeting of ministers to meet once.

My Lady, it is essential for the Northern Ireland political establishment to appreciate that for all its commitment to community, and the reality that most of the politicians hail from grassroots and remain proud of their connection to them, its connections to its communities has not properly extended to disabled once, and that the ultimate answer to why it did not do better is that it did not yet know how.

The DPO have asked the Inquiry in all its modules to consider how a new and broader ethics of care must become more mainstreamed into state and society after Covid. Northern Ireland needs to be shaken out of its complacency that it is yet truly working together in a state of social partnership with all its people. That needs to happen not least because its politics is in the custody of political parties who have committed to place humanity over their competing visions of state. Failure to govern for disabled people during Covid, therefore, is a lesson to all parts of this place.

The advocacy of groups like Disability Action and the situation of one in four people who are disabled in Northern Ireland needs to be a key part of the continuing post-conflict transition. The “post” in the post-conflict requires recognition that there is a plurality of communities in Northern Ireland, not just Nationalists and Unionists, but as yet the mechanisms and the dominant political narratives have been insufficient to govern for them.

My Lady, where that leaves us is that it is time for this public inquiry, engaged as it is with the fate of disabled people and other marginalised groups, to challenge the insularity and irresponsibility of the way that this place can be governed, because it doesn’t have to be this way, and those in power who care about it can make it change.

Thank you.

Lady Hallett: Thank you very much indeed, Mr Friedman, I’m very grateful.

I shall return at 11.40.

(11.22 am)

(A short break)

(11.40 am)

Lady Hallett: Ms Anyadike-Danes.

Submissions on Behalf of the Commissioner for Older People for Northern Ireland by Ms Anyadike-danes KC

Ms Anyadike-Danes: Thank you, my Lady, and thank you for affording me the opportunity to address you at the end of these 11 days of oral hearings.

As my Lady knows, I act on behalf of the Commissioner for Older People in Northern Ireland and his office was established in 2011 with the principal aim of safeguarding and promoting the interests of older people in Northern Ireland, a group who at the last census in 2021 represents approximately 23% of the total population, and it is a growing group.

For the purposes of the Act, older people are defined solely by the fact that they are 60 years or older and, as such, they represent a cross-section of society, and whilst there are those who are healthy and should have a good quality of life for many years, nonetheless, as a group, they are more highly represented in the Northern Ireland figures of those with disabilities, mental health issues, comorbidities and those on hospital waiting lists, and they require not just health services but most especially social services.

A considerable number of them live and are cared for in community placements, provision of which is outsourced by their health and social care trusts to privately-owned providers.

None of this is new. Accordingly, the Department of Health as the lead department in the government’s response to the pandemic should have factored it into the planning and the response to the pandemic and the government should have ensured that it was properly addressed in its response, and we’re here because they did not, and older people and others who were known to be vulnerable paid a terrible price for that failure, and their families are living with its consequences.

The issue for the Commissioner is how and why that happened. This is the learning that he hopes the Inquiry will identify, and in fact to a large extent it has already identified it. The older people that the Commissioner represents now are largely those who directly experienced the consequences of the government’s planning and decision-making and survived it. Many of them lived through life-changing events. They are seeking to make sense of what happened, and to know changes will be made to ensure that other older people do not have to endure anything similar or lose their lives as so many did. They hope that this will be done through the recommendations that you, my Lady, will make, and also the focus that the public can bring on what the government does with those recommendations.

The purpose of this closing is to highlight some of what the evidence has shown in relation to just two principal issues, because we can deal at greater length in the written.

Firstly, the apparent absence of section 75 of the Northern Ireland Act in planning and decision-making. Secondly, areas for improvement.

So starting with section 75, that places a statutory obligation on public authorities in carrying out their functions to have due regard for the need to promote equality of opportunity, which includes access to appropriate health and social care services, between what are known as the nine protected categories.

Older people feature heavily in two of those categories, age and persons with disabilities. They are also highly represented in those requiring the health and social care services. By the beginning of 2020, when the prospect of a pandemic was beginning to be recognised and that steps would need to be taken to protect the public, the Department of Health would have had decades of experience of applying section 75.

Consideration of the protected categories should have been embedded in the very DNA of the approach to all public sector decision-making, including civil contingency planning. The whole of Northern Ireland now knows the extent to which older people and others who are in those protected categories were particularly adversely impacted by the government’s response to the pandemic, and no matter how many times the numbers of them who suffered and died of Covid is stated, it still has the capacity to shock, and so it should. It will remain a lasting shame.

What this hearing has exposed is the extent to which section 75 was not properly factored into the planning and decision-making of the government’s response to the pandemic. At times it seems as though years of accepted practice on the implications of section 75 were ignored in the face of the looming pandemic, notwithstanding the knowledge that those whose lives were most at risk were in those protected groups. The evidence on this is stark.

Jenny Pyper acknowledged that the extent of the impact of NPIs on different groups within society was not assessed in any systematic way, and while she states that initially the pace of decision-making was such that it simply was not possible to do the normal section 75 or EQIA reviews that would have been a part of Civil Service process, she concedes that an opportunity was missed by the Covid Taskforce to perhaps have an equality workstream. This could have considered the huge amount of information from the social care system. It would also have provided a direct contact for Disability Action and the Commissioner for Older People, and a means of providing stakeholder involvement.

But that didn’t happen. Karen Pearson acknowledged that “we could have done more, we should have done more … should have found a way to make time”, and it was a failure of planning in the months leading up to March 2020, when it was known there would be a pandemic, that time wasn’t used to think about the impact that there would almost certainly be on a number of different people in society.

Dr Joanne McClean also acknowledged that there should have been a broader risk assessment role for the PHA about the particular vulnerabilities, for example, of disabled people in the community and helping to inform decision-making, but none of that explains why there was such a glaring omission from planning, especially when the likely consequences of it for the vulnerable are entirely foreseeable. Without an insight into and understanding of why it happened, it’s difficult to exclude the possibility of it happening again, and the closest explanation lies in the evidence on the role and focus of the department and its Chief Medical Officer.

So, for example, the evidence of Edwin Poots, he acknowledged the failure to take into account older people, disabled people, young people, as the focus was almost entirely on our response to Covid-19 to the complete ignorance of anything else, and with that focus being driven by the Department of Health and the advice of Professor Sir Michael McBride, the CMO.

So, section 75 failure is just one example, unfortunately, of a wider failure in pre-pandemic planning and of decision-making throughout the duration of the pandemic. Any planning for a Northern Ireland response to a health pandemic would need to take in the distinctive features of its structures and population.

Northern Ireland has an integrated health and social care system, your Ladyship has heard about that. The evidence of Richard Pengelly was that, in the context of the pandemic, that could have been an advantage, as it should have provided greater oversight, but he had to concede that the integration was more illusory than real and there were no tangible benefits for the patients.

The Commissioner for Older People’s evidence was perhaps more direct: it could have been an advantage, should have been an advantage, but the opportunities for it to be so were wasted. Instead, it operated to the detriment of those in care homes.

It was generally accepted during the hearing that Northern Ireland’s health and social care system was extremely fragile, it had insufficient funds and not enough staff. The delivery of social care was heavily dependent on the private sector and it was in urgent need of reform.

Also none of that was new, as it had been an ongoing discussion for 30 or 40 years and is the subject of detailed reports. However, the evidence shows that there was nonetheless a failure to factor in the implications of those structural weaknesses and its frailties into planning. And while Sir David Sterling claimed that the knowledge that the Bengoa report was sitting on the shelf waiting to be taken forward would have been at the front of all ministers’ minds in January and February of 2020, and that there would have been a recognition that the health service would be under particular stress which would be exacerbated by the structural problems which had built up over the years, amazingly the understanding of this did not seem to have crystallised until in and around the start of March. Consequently, there would not have been time for much, if any, of that to have influenced pre-pandemic planning, and indeed it seems clear that it didn’t.

However, that could all have happened subsequently, when the transmission rate of Covid-19 started to rise markedly and a government response was required, those weaknesses in the structure for delivering adult social care and their implications could and should have been appreciated and factored into planning to avoid potentially disastrous outcomes for older people later on, and again it seems clear that didn’t happen, or at least not to any appreciable extent, and, to use the Commissioner’s words, older people were left horribly exposed.

Well, so much for what should have been factored in. That leaves the inevitable question of: when should it have been factored in?

The graphic that the Inquiry produced showing the two waves is remarkably stark. Whereas the first wave in Northern Ireland was bad, the second wave was worse. It was higher, and more prolonged. Those waves and the concentration of deaths amongst older people and other vulnerable groups represent what the government should have been seeking to avoid with early and appropriate information and planning. However, the distinct impression from listening to the evidence over these 11 days is that there was a lack of urgency, and that is simply incomprehensible in the circumstances.

The timeline shows that the first SAGE meeting on Covid took place on 22 January, the first COBR meeting on 24 January, the CMO had his first engagement with other UK CMOs that day, and the Scientific Pandemic Influenza Group on Modelling, which is comprised mainly of infectious disease modellers, met on 27 January.

Robin Swann, as Minister of Health, attended the COBR meeting on 29 January, and attended SAGE meetings, the first being on 6 February. The following day WHO declared Covid-19 a public health emergency and the next day the UK had its first confirmed case. On 4 February WHO published guidance on scaling up country preparedness and response operations, and then there is a significant period, in the context of the pandemic, until the first case is confirmed in Northern Ireland on 27 February.

There was time. The information the Department of Health obtained from these early meetings and the regular attendance of its officials at that time would have left them in no doubt about the seriousness of the position and the implications of that for Northern Ireland, given the state and capacity of its health and social care system. But unfortunately, it did not seem to lead to a commensurate level of urgency, whether in the pre-pandemic phase and prior to the first wave or after the first lockdown and prior to the second wave.

A striking illustration of that is the position of Professor Ian Young. He went on leave on 12 February 2020, seemingly without having made any contribution to pre-pandemic planning, but, more importantly, without any replacement or even arrangement for one having been made, and it appears little was done by way of modelling or the provision of the scientific advice that he would have been expected to provide until his return at the end of March. The explanation was there were insufficient data points at that stage, effectively there was no basis from which to develop a model.

However, the UK modelling group met before there were any confirmed Covid-19 cases, and also Professor Young went on leave after a series of COBR and SAGE meetings when there were already worrying signs as to the potential rate of Covid transmission and its seriousness, yet he does not seem to have indicated what might be done in his absence or to have any recommended liaison with UK modellers and/or their counterparts in Germany and Italy, which already had cases, so that preliminary work could start.

There is no explanation of why, since at the time he left he would have no idea whether Northern Ireland could afford to wait until his return at the end of March before getting started on modelling. A lack of urgency, an inconsistency which typified the government’s response.

The Inquiry has many examples from which to conclude that the period leading up to Christmas in which the restrictions were imposed, lapsed, brought back in again, was the very antithesis of what planning during the pandemic should be.

Senior counsel for the bereaved has only so eloquently listed some of them and your own senior counsel has also, very well indeed, exposed them.

The evidence from Baroness Foster on her response to the urgings of the Minister of Health and CMO to implement a lockdown circuit-breaker as the situation became far more serious than in March are just difficult to understand. The source of any expert advice to justify her contrary view to what they were urging then is entirely unclear, including to allow aspects of society to remain open and available to people.

Given the risks to older people in care homes and vulnerable people in the community and to hospital capacity, it’s difficult to know what to make of her statement that for, and I quote now:

“… but for those of us who need to get our hair cut every couple of weeks, it was becoming a real issue …”

Or that coffee shops had bought stock in the anticipation of opening and:

“… if we hadn’t allowed them to open for that week all of that stock would have been lost …”

Decision-making on something as serious as the protection of vulnerable lives seemed to descend into chaos.

So then now finally what needs to be improved.

Older people and the public in general were repeatedly told: we’re all in it together. But they were not, in any meaningful sense. Older people in care homes and the disabled and socially disadvantaged did not have an equal experience of either the pandemic or the impact of the government’s response to it. They suffered, and died, in disproportionately high numbers. The Commissioner hopes that recommendations can be made to inform planning for the future and to minimise the risk of that happening again.

Dr Joanne McClean identified an important part of the problem lay with the health inequalities in society, and that was contributed to by socioeconomic circumstances and education level, and she acknowledged that there is an onus on the Executive and on government to realise that there are unfair inequalities that need to be tackled, not just because they caused an issue in the pandemic but just because they can and should be tackled. Addressing that probably lies outside the scope of this module. However, in the light of the evidence heard, the Commissioner suggests the following could contribute to improved planning and decision-making in preparing and responding to a health pandemic.

First, establishing a better structure for providing the Executive with timely, independent, specialist advice including re-considering the roles of the Chief Medical Officer and the Chief Scientific Adviser. The evidence showed that the CMO’s multiple roles could become blurred and his position as a departmental official deprived the Executive and other departments of a properly independent view. They had no basis from which to properly assess the advice he was giving them.

Two, ensuring that greater significance is given to the role of the Chief Social Work Officer. It was known that older people in care homes or in receipt of domiciliary care were likely to be disproportionately affected by the pandemic and many of the restrictions imposed. So the lack of reference to any significant input from the Chief Social Work Officer for planning is striking.

Three, developing a mechanism to better use the available experience and expertise of those in the third sector and bodies such as the Commissioner. This would have improved the government’s planning and response at the time and could have avoided some of the chaos that undermined public confidence and compliance. The offer by Karen Pearson to talk to equality groups about doing more in civil contingencies space and developing a civil contingency risk register will force a consideration of vulnerability in section 75, is a welcome start. But what is required is a proper structure so that it is more than a commitment from an albeit dedicated individual.

Then just to conclude, my Lady, the Commissioner was hoping that there would be answers and an understanding of how and why vulnerable older people were so badly failed by the Northern Ireland Government’s response to the pandemic. Regrettably, the answer to the “how” question is far more deeply depressing and concerning than he thought possible, whilst the answer to the “why” question is not really there.

In his view, it needs to be, not least to build the public’s trust and confidence in the government’s ability to adequately respond to the next pandemic so that lives are protected. The evidence heard has done little to start that process, but it must happen, because without such trust and confidence the public may not respond with the necessary compliance to whatever measures are considered necessary in the future, and that will be to the detriment of everyone.

Thank you very much indeed.

Lady Hallett: Thank you very much indeed.

Mr Phillips.

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

Mr Phillips: My Lady, in my brief opening submissions on

behalf of the NPCC on the first day of this hearing,

I suggested that the focus of the hearing would be, and

would rightly be, on high-level political

decision-making and political governance in

Northern Ireland, rather than on police work, and so

it’s proved.

So although Mr Todd, who led the police response to

the pandemic here, was your penultimate witness, the

striking thing about the evidence which preceded his was

how little time was spent on policing.

What then did you learn from the limited evidence

which did touch on that topic?

First, I’d suggest that those non-political

witnesses who were asked about policing here in the

pandemic were united in their view that the police’s

approach to the Covid regulations, set out by the NPCC

and then adopted here by the PSNI, was appropriate and

fair.

The four Es approach – and I know that I don’t have

to spell out the four words for you – was a realistic

and proportionate response by the police to the extraordinarily difficult task that they faced, in seeking to persuade the public to comply with regulations which, as Mr Todd explained to you, were often produced at short notice, were often hard to understand, and harder still to apply, which changed very frequently, and about which there was insufficient guidance from government.

As you know, the police’s aim was to achieve compliance, and in that, enforcement, by the imposition of fixed penalty notices or other means, was the last and not the first resort.

As the Chief Medical Officer said in his evidence, “We couldn’t police the virus into submission”, or, to put it another way, as Karen Pearson noted, “You can’t arrest your way out of a pandemic”.

The truth is that, for the reasons which I touched on in my opening submissions, and as was explained by Mr Todd in his careful evidence to you on this point, the PSNI faced the most formidably difficult challenge of all of the police services in the United Kingdom when it came to the Covid regulations. Community trust and public confidence have been harder won here than anywhere else, as you know.

The PSNI’s approach to that challenge was, of course, shaped by this very specific policing context. The operational decisions which were taken by its leaders, and by Alan Todd in particular, drew on their unrivalled experience of those unique conditions.

Those decisions were not for politicians or anyone else to make, but, as one of the senior officials put it to you, the PSNI were placed in a nigh on impossible position, and of course the Bobby Storey funeral was a paradigm example of that.

That, my Lady, is a background, but also the answer to the suggestions made in some of the witness statements, though not pursued with any vigour in the evidence that you heard, that the PSNI’s approach could have been more robust.

Those comments, with respect, misunderstand the PSNI’s operational strategy and decision-making, and fail to take account of the context which I’ve just outlined.

Moreover, the statistical information with which we’ve provided the Inquiry, shows, ironically, that the period during which it has been suggested that the police had eased off, namely in the autumn of 2020, was in fact the peak of enforcement in terms of FPNs. You’ll remember the details of fines and other enforcement measures in about September that year, which Mr Todd gave you in his evidence yesterday.

My Lady, turning back to the more general question of enforcing the Covid regulations, I would suggest that Naomi Long, Minister for Justice during the pandemic, accurately and fairly summed up the position in her witness statement when she said, at paragraph 198:

“It was an unprecedented ask of police officers and staff in an unprecedented time. I believe that, overall, the PSNI endeavoured to enforce the regulations fairly, sensitively and proportionately; advise the Executive of the limitations of their powers and of the regulations and/or guidance; and work in a collaborative manner throughout.”

My Lady, we will, of course, put in written submissions, but that’s all I wish to say at this stage, and I think I’m well within my allotted time.

Lady Hallett: You are, Mr Phillips, thank you very much indeed.

Ms Murnaghan.

Submissions on Behalf of the Department of Health Northern Ireland by Ms Murnaghan KC

Ms Murnaghan: My Lady, these Inquiry proceedings over the past 11 days, preceding weeks, have brought a forensic focus to how the Northern Ireland Executive responded to the pandemic. This has been a necessary but also a difficult and illuminating process. It may, in these circumstances, be tempting to recall the words of the late Queen, albeit in a somewhat different context, in fact at an Irish state banquet in 2011, when she said that, with the benefit of hindsight, there are things that we “wish had been done differently or [indeed] not at all”.

In an ideal world, my Lady, Northern Ireland’s health and social care system would have been less fragile at the beginning of 2020, its government and political system would have been more stable, ministers would have had time to bed into their respective departments, and its government wide civil contingency system would have been in a better place.

Undoubtedly, as Covid-19 reached our shores, the global challenges caused by the paucity of testing capacity was regrettable, but not unforeseeable, given that the genome was only identified on 10 January.

Greater testing capacity at an earlier stage would have made significant differences, in that it would have allowed for more informed policy choices to have been made and, indeed, as the pandemic progressed, the continuation of Executive unity would have also been a further significant benefit.

However, my Lady, it is trite to say that we do not live in an ideal world and Northern Ireland’s preparation for and response to Covid-19 was inevitably far from perfect. Criticisms have been levied against actions and inactions taken by the Department of Health, and we have no doubt that where such criticisms are merited the department will seek to learn lessons from those failings.

Nevertheless, and without being in any way defensive, such criticisms must be viewed in the context of this being a situation where there were no easy answers and only incomplete evidence. Indeed, in the vast majority of occasions, the department was faced with investigating and advising on the least harmful options.

We must also keep in view the reality that these issues were being addressed by a relatively small group of people who were working at an unprecedented pace, over long hours, for many months, each of whom was making significant personal sacrifices for the good of their community.

My Lady, as Anthony Hidden QC commented in the Clapham Junction rail incident report, there is almost no human action or decision that cannot be made to look more flawed and less sensible in the misleading light of hindsight.

A full exploration and understanding of the factual and evidential position which pertained at the time is of course necessary to ensure that we are better prepared from any future pandemic. However, to identify the true learning, we must also be cautious to avoid the temptation of proceeding on the basis of preconceived theories or opinions, assuming positions of simplicity and certainty when in reality there was only complexity and uncertainty.

The Department of Health does acknowledge that other parts of government may have been frustrated at times by a perception that the department was not always promptly sharing evidence with it. However, we can say there was no intention to delay the delivery of updated advices; rather, the timely provision of information was hampered by limitations on the acquisition of reliable data, ongoing uncertainties over the virus, and an ever-changing situation.

We would also say that in leading the health response, the department acted in a prompt and timely manner when it stood up the silver tactical command structures on 22 January 2020, when it activated the Department of Health emergency response plan, and it stood up its gold command five days later on 27 January 2020.

Questions have, of course, been asked in these proceedings about the extent to which the department should have sounded the alarm about the impending threat of the virus. The department contends that it provided regular updates to the Executive, to the Assembly, to the Civil Service and the wider public in respect of the unfolding situation.

To take just one of those limbs, in the seven statements made by Minister Swann to the Assembly, these powerfully demonstrate how open the department was with the information it had at the time. From the statements that Minister Swann made to the Assembly from 24 January to 19 March, it is clear, we say, that a robust message was delivered. This message clearly articulated the evolving situation. Right up to the point when the WHO declared the global pandemic on 11 March 2020, the department’s focus was on providing assurance to the Assembly and indeed the wider society that plans were in place to deal with the virus.

Moreover, as the information about the pandemic increased, the statements reflected the change in that evolving situation. Some examples, we say, confirm the fact that the Assembly was updated throughout. These include the minister’s statement on 24 January 2020, which was before the first case was identified in the UK, and at that stage the evidence was that the risk to the UK public remained low. However, the minister said:

“… there can be no room for complacency. There may well be cases in the UK at some stage. I have been assured that we are well prepared for these types of incidents. I am confident that my colleagues in the Executive and across the Assembly will understand that while it is important that we remain vigilant, we need to take a proportionate response to what is an emerging issue.”

The minister made a second statement to the Assembly some five days later, on 29 January, which was still before the first case was identified, and he said:

“While the current risk is assessed as low for the UK, members will appreciate this is a rapidly evolving situation. Hence this risk assessment is under constant review. Therefore there can be no room for complacency and my priority as Minister is still to ensure effective measures are in place [in] Northern Ireland. To this end I have … participated in a COBR meeting this evening which comprised UK Government Ministers and Ministers from the Devolved Administrations. We have given our firm commitment to a coordinated approach to this extremely important issue.”

The minister’s third statement to the Assembly, made on 3 February, was after the first two cases were identified in the UK, and he had already briefed the Executive that morning, and to the Assembly he said:

“I want to [assure] members that while the risk has been raised from low to moderate there is no cause for alarm [but this] does not mean we think the risk to individuals in the UK has changed … rather … we should plan for all eventualities.”

He continued to confirm that he had spoken to the First and deputy First Ministers and he said:

“… [I] have been assured that all the necessary resources of Government will be available to help keep our people safe. I have updated my Executive colleagues at our meeting this morning and have their full support and commitment.”

In a fourth statement, on 26 February, the minister said:

“It is important … [to] remain calm and focused … we should continue to plan and be ready for all eventualities.”

He made a fifth statement on 28 February, the day after the first case in Northern Ireland, and he made that by way of urgent oral statement, and he advised that it was not unexpected that we would have a case in Northern Ireland at that point.

That was swiftly followed by a sixth statement at which stage Northern Ireland still only had one positive case, and there was one case that had been identified two days earlier in the Republic of Ireland, and during that he reiterated:

“I remain in close contact with other UK Health Ministers and I will continue to take part in weekly COBR ministerial meetings to ensure our joined up approach in tackling this disease … I can also advise that I along with the First and deputy First Ministers participated in a COBR Ministerial meeting this morning which was chaired by the Prime Minister …”

He continued:

“Across the [Northern Ireland Civil Service] planning has been stepped up to ensure a co-ordinated response from all sectors of Government. I am aware TEO is leading the work on assessing essential services and key sectors’ resilience and that they convened a cross-departmental meeting on 20 February where information on … all possible eventualities was shared and all Departments were asked to review business continuity plans. A tabletop exercise is planned in coming days where our planning and preparation across government will be discussed.”

He continued to say:

“Complacency is our enemy – but so too are panic and hysteria.

As we [have] said, we will continue to [plan] for all eventualities.”

My Lady, we say it is notable that these statements pre-dated the WHO declaring the virus as a global pandemic, which happened on 11 March. One recalls that this was a time when there was considerable uncertainty, but there is evidence of considerable preparation and planning under way.

Finally, the minister made a seventh statement on 19 March, after – at which stage we had had our first death from coronavirus in Northern Ireland. That statement provided a considerable amount of detail of the actions that had been taken and what was planned to come.

Reflecting on the consistent and increasingly urgent messaging from the minister in these brief excerpts, it is contended that the concerns that insufficient actions were taken to sound the alarm are without merit.

These communications should also be viewed in the context wherein the permanent secretary, Mr Richard Pengelly, for the department had specifically briefed his permanent secretary colleagues on 7 and 21 February 2020, in the course of which he emphasised the need for his colleagues to pay urgent consideration to sector resilience in the face of the growing threat.

Moreover, this Inquiry has heard the clear view of its expert advisers, Professors O’Connor and Gray, that too much weight was placed on one department, and that department was the Department of Health.

My Lady, there are several themes which the department would seek to expand on in its written closing statement which are, regrettably, too detailed to be extensively rehearsed in these closing remarks. These topics will include evidence to demonstrate the manner in which the department fully understood and appreciated the gravity of the impending pandemic. But it is submitted that the Department of Health could only ever have led on the health response to the pandemic and could never have taken charge of a wider co-ordinated cross-governmental response. In part, this is due to the fact that the department had no sight of or expertise in other non-health sectors, and the factors involved.

In its written closing statement, the department will seek to address its understanding of its role as the lead government department, the activation of NICCMA, and its understanding of the appropriate scope and reach of its responsibilities.

Finally, my Lady, we say, looking at the overall picture, it is important also to acknowledge what was achieved. The threat that was posed by Covid-19 was unparalleled, and so too was the scale of the response that was activated. Restrictions that previously would have been unthinkable in peacetime were introduced and, more importantly, were assiduously adhered to by the vast majority of the population.

Without minimising the dreadful consequences for many in our society, it is nonetheless relevant to note that Northern Ireland, in its response to the pandemic, fared better when compared with other nations in the UK.

Moreover, the SAGE autumn 2020 four nations comparison exercise, which is found at INQ000422240, emphasised that the interventions in Northern Ireland in the second wave proved to be the most effective of those imposed by the other devolved administrations and central government.

The Department of Health maintains that the advices that it gave in respect of the key decisions on restrictions, whether to introduce NPIs, or lockdowns in March 2020, and again later that year, were the correct ones.

My Lady, throughout these oral hearings you have heard a variety of themes which have suggested that alternative responses could or should have been taken, whether in the form of NPIs, or the timings of school closures, or lockdowns. The restrictions that were imposed undoubtedly exacted a heavy price on our society. However, in the absence of a widespread vaccine at that stage, these were the best or possibly better put as the least worst options to take.

It is incontrovertible that these difficult decisions and restrictions which were imposed saved many lives, and while our health service and our health and social care teams suffered from the severe impacts of Covid, from which it will take many years to recover, ultimately the health service did not collapse, and for that, my Lady, we can be thankful.

We can also be very thankful for those who worked tirelessly to the very best of their ability to protect our citizens. We acknowledge the many sacrifices of the population of Northern Ireland to protect those who were and remain the most vulnerable.

Few of us emerged from the pandemic unscarred. Those scars should inspire us to ensure that the legacy of this pandemic must be that we are better prepared for the next one.

Thank you.

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

For those who question the need for and cost of this Inquiry, I suggest they listen to those closing submissions.

Ms Dobbin. Closing remarks by LEAD COUNSEL TO THE INQUIRY for MODULE 2C

Ms Dobbin: My Lady, may I address you on two things, please?

As you know, whilst these hearings have ended, your work continues apace, and of course pursuant to that, with your permission, the Inquiry has adduced in evidence and published on its website through the course of these hearings a number of documents. This comprises the documents that have been brought up on screen and during the hearings, and indeed the statements of witnesses who have given oral evidence.

But we expect, as with previous modules, that you will wish to consider a wider body of material for the purposes of writing your report, and to that end the Module 2C team have provisionally identified a list of additional documents which we will also seek your permission to adduce.

This will include, amongst other items, approximately 60 statements of witnesses who have not given oral evidence but whose statements you may wish to rely upon for the purposes of compiling your report.

So we propose to circulate a list of those documents to core participants so that they have the opportunity to review the documents which we have suggested, and either object to those or to, indeed, propose additional documents which they think you ought to take into account for the purposes of your report.

Thereafter, with your permission, the Inquiry will adduce in evidence and publish those documents, again, on its website.

The second matter, my Lady, as you might recollect, at the very outset of the Inquiry, the issue as to why the Executive Office had not disclosed the Executive Committee minute notes of 2 July was set out to you, and you heard that the TEO would produce a report which set out the findings of an investigation into that.

I can confirm that that report was received by the Inquiry yesterday evening. You have not, of course, had a chance to consider it, and obviously that will be the first thing that you will do, but I think it’s appropriate that I obviously set out that that has been received and will be considered.

Lady Hallett: Thank you, Ms Dobbin. Obviously, I will need to take time to reflect upon its contents and see what more, if anything, I intend to do.

Closing Remarks by the Chair

Lady Hallett: Thank you all very much. That now completes our hearings in Belfast for Module 2C, core decision-making and political governance in Northern Ireland.

I hope that we’ve covered the most important issues under that heading thoroughly and rigorously. I know there are other issues of concern to the people of Northern Ireland, for example care homes, discharge of patients to care homes, test and trace, issues that we’ve only touched on during the course of this Inquiry, vaccines, use of do not resuscitate notices, but these are all issues, I can assure people, we shall cover in later modules in far more detail.

We shall also be exploring a large number of other issues, including a more detailed examination of the impact of the pandemic on the population of the United Kingdom, for example the impact on mental health.

So they are not issues that are being ignored; they are issues to which I shall return.

Having heard the oral evidence in this case and, as Ms Dobbin has just mentioned, I received the written evidence, I will now begin my analysis of all that material gathered by the Inquiry team.

I will then, if I can, conduct a comparative analysis with Modules 2, 2A and 2B. I don’t know the extent to which that will be possible, because I was always warned to be wary of making comparisons unless you have exactly similar circumstances, but I will do my best if it is possible.

I also obviously wish to examine carefully the issues that are specific to Northern Ireland, just as there are issues specific to Scotland and issues specific to Wales, and I assure everybody, again, that I will cover those matters fully and fairly in my report.

The report will take some time, and I make no apologies for that, it’s too important to rush, and so I ask people to bear with us. I hope that we’ll be able to publish it as soon as possible, and I promise you the teams will be working extremely hard to make that possible.

I hope too that I’ll be able to include in it recommendations that will make the system stronger and better able to withstand the challenge of a national civil emergency on the scale of the Covid-19 pandemic.

I know it is important to all those who have suffered that we do make – that I do make recommendations and that they are implemented as soon as possible, because they hope to reduce the suffering of others in the future.

I should like to thank the bereaved families and everyone else who suffered, and all those who have contributed to these hearings: the material providers, the witnesses, the core participants, and of course the Inquiry team, both front of stage and backstage, including our technical team behind their wall of blue.

I believe that it was worth what is, I’m afraid, quite a large cost in bringing – in preparing for the hearings and in bringing the hearings to Belfast. But, as I’ve always said, this is a UK-wide inquiry, it is not a London/Westminster-specific inquiry.

I hope that my feelings are shared by the people of Northern Ireland, that it was worth bringing the Inquiry here, and I particularly I hope that the bereaved feel that it was worth it. Some of them have been present throughout, and thank you for your constant support, but I know that many others have been following online, and I thank them too.

I would also like to thank the people of Northern Ireland for the warmth of their welcome; and yes, Ms Campbell, we have found it to be a very warm welcome.

So thank you all very much indeed. I think the next main hearings will not now be until the autumn, although there are many other preliminary hearings to be considered before then.

Thank you.

Ms Brenda Doherty: Baroness Hallett, can I just thank you for coming to Northern Ireland, because it has meant a lot to us families (inaudible) travel to London. So for a lot of the people that you’ve seen here every day, we wouldn’t get to London, so thank you for coming to Northern Ireland, we really appreciate it.

Lady Hallett: Thank you for saying that.

(12.31 pm)

(The hearing concluded)