16 October 2025
(10.00 am)
Lady Hallett: Ms Pottle.
Ms Pottle: My Lady, may I call Dr Shona Arora.
Dr Shona Arora
DR SHONA ARORA (sworn).
Questions From Counsel to the Inquiry
Lady Hallett: Thank you for coming along to help us.
Ms Pottle: Please could you give your full name.
Dr Shona Arora: My name is Dr Shona Arora.
Counsel Inquiry: Dr Arora, you should have in front of you a witness statement you prepared for the Inquiry, and it is INQ000588110. You are the director of Health Equity and Clinical Governance at the UK Health Security Agency. Is that right?
Dr Shona Arora: That’s correct. I’m also, since September 22 of this year, the interim Chief Medical Officer for the UKHSA, for the moment, as the post-holder for that, Professor Susan Hopkins, is now UKHSA’s chief executive officer, so I’ve stepped up to provide some cover in that role as well.
Lady Hallett: Can you get closer to the microphone?
The Witness: Is that better?
Lady Hallett: Yes, thank you.
The Witness: Sorry, I have a soft voice.
Lady Hallett: You do.
The Witness: I’ll try and speak up.
Lady Hallett: Thank you.
Ms Pottle: You are a trained medical doctor; is that right?
Dr Shona Arora: That’s correct.
Counsel Inquiry: Okay. And you worked at Public Health England during the pandemic, which is the predecessor organisation to UKHSA; is that right?
Dr Shona Arora: That is correct, yes.
Counsel Inquiry: And what was your role at PHE during the pandemic?
Dr Shona Arora: So, during the pandemic I was working part-time. My permanent role at that point was Deputy Director for Public Health Workforce Development, but during the pandemic one of the roles I took on was supporting a parliamentarian cell telephone helpline from about April through to July 2020, before returning to my substantive role to assist with the public health reform programme.
Counsel Inquiry: Today in your evidence I will be asking you some questions about PHE’s role during the pandemic, covering various topics. But just so we are clear, you’re giving evidence today from Public Health England’s corporate perspective, not on matters that you yourself personally were involved in; is that right?
Dr Shona Arora: That’s correct. I had very limited direct involvement in the Covid pandemic, apart from my role in the parliamentarian cell.
Counsel Inquiry: Okay, and the Parliamentarian cell, that was giving advice to Members of Parliament; is that right?
Dr Shona Arora: To them and to their officers and caseworkers. A lot of MPs’ offices were, particularly at the beginning, receiving a lot of queries from their constituents, so this was one of the helplines PHE established to try to support and get information out to the public.
Counsel Inquiry: Okay. Turning then to PHE’s role during the pandemic, PHE provided scientific research and advice to inform government decision making and policy development; is that right?
Dr Shona Arora: That’s correct.
Counsel Inquiry: And PHE also produced evidence-based guidance, and that advice was provided to government in a number of different ways, including by members of PHE participating in SAGE, for example?
Also at a local level, participating in location action committee meetings? Is that right?
Dr Shona Arora: That’s correct.
Counsel Inquiry: Okay. What the Inquiry is particularly interested in, in this module, is advice and guidance that PHE produced touching on the provision of education to children during the pandemic, and on the detention of children in prison, but before I move on to those topics, there’s one matter of general background that I’d like to explore with you, and that is whether PHE had a controlling say on the content of all public-facing health guidance under the so-called triple lock system.
So, Dr Arora, in a witness statement which we don’t need to pull up, but a statement of Elizabeth Ketch from the Department of Health and Social Care – and the reference for the transcript is INQ000652113 – in that statement Ms Ketch describes a triple lock system, which meant that public-facing health and behavioural guidance from about May of 2020 had to be agreed between the Chief Medical Officer, the Cabinet Office at Number 10, and also by senior PHE officials. Does that sound right to you?
Dr Shona Arora: That does sound right, in terms of who a piece of guidance would need to go through before it was finalised.
Counsel Inquiry: Okay. And can we take from that that, for example, some Department for Education guidance, which we’ll come on to, on school attendance, would have been agreed also by senior PHE officials?
Dr Shona Arora: It would have – the health components of DfE guidance would certainly have been put in front of PHE officials to comment on.
Counsel Inquiry: Okay. Before we go on to guidance touching on education, I’d like to cover with you a topic which is infection control measures to make schools safer in a future pandemic. So something that we’ve referred to in the Inquiry as the “safer schools” topic. Before we go on to the detail there are different names and acronyms for these measures, but so that we’re clear, I will use the term NPI, so non-pharmaceutical interventions. That is the term the Inquiry has used most often. So we’re not talking about vaccines here but other measures, like social distancing, cleaning, masks, ventilation, air cleaning, for example.
Firstly, what is the evidence – what is the standard of the evidence regarding the effectiveness of infection control measures deployed during the pandemic? You deal with this at paragraph 5.12 to 5.15 in your witness statement, and what you say there is that there isn’t good evidence at present showing which measures in particular were effective.
Have I understood that correctly?
Dr Shona Arora: I think – so this is based on a systematic review of available evidence that reviewed the literature up to January ‘24, and particularly in the context of schools and education, the evidence base is not the highest quality, and that’s for a number of reasons, including the difficulty of studying this in real time and the fact that it’s quite difficult to disentangle the impact of one particular NPI from another, because in many cases NPIs are implemented as a package.
So there is, if you like, in the context of strength of evidence and the science and evidence base it is not gold standard by any means and was lesser so pre-pandemic.
Counsel Inquiry: That might be thought as being quite surprising that, several years on from the pandemic, where extensive use was made of NPIs in schools, for example guidance given about the system of controls, face masks, hand washing, bubbles, that sort of thing. So am I right in thinking that, still now, we don’t have – we don’t really know which measures from that selection actually worked to prevent the spread of the virus?
Dr Shona Arora: We probably don’t know with huge certainty. So if I took, for example, a comparison with a clinical measure like vaccination and – where you can thoroughly test it out through a clinical trial and what we might call a randomised control trial where you can correct for bias and other issues, a lot of our evidence is based on what we call more observational studies in the real world, so studying what’s happening in populations, but it means that we’re less good at accounting for things that might actually be influencing the effectiveness or an outcome, because we don’t always know how to control for them or identify them.
We sometimes use modelling studies, as well, to inform the evidence base. But again, that – models are only as good as the assumptions that we put in, and they also rely on having some basic data around, for example, biological behaviour of a particular pathogen.
So if I compare it to the gold standard of RCTs and sort of more clinical interventions –
Counsel Inquiry: RCTs are –
Dr Shona Arora: Sorry, randomised control trials, where you can control more successfully for those unknown variables that might be the cause of why something is more or less effective, which you can’t do in an observational study in the real population, as easily, which means that you can sometimes get a result and make an association, but it – that could be really effective but actually it might be due to something else that you haven’t been able to account for.
Counsel Inquiry: I see. In your statement I think you also mention that it’s – it would have been unethical to create a sort of control group during the pandemic and withhold interventions from that group.
Dr Shona Arora: Yeah.
Counsel Inquiry: That might have given you a better idea of what interventions were working –
Dr Shona Arora: Yeah.
Counsel Inquiry: – but the ethical boundaries meant that wasn’t possible.
Dr Shona Arora: Yes, and that’s – and all research and trials do have to go through an ethical process, but if there’s something that you think would genuinely help and save lives sufficiently, that would stop you denying people from that or the population from that, and that’s the situation we were very much in.
Counsel Inquiry: Okay. You mentioned a moment ago a rapid review, and I’d just like to take you to that quickly.
The reference is INQ000651524. Thank you very much.
And we can see here, this is just the front page, so it’s the “Effectiveness of non-pharmaceutical interventions as implemented in the UK during the Covid pandemic”, a rapid review.
Just before we move to the conclusions, can you just tell us what a rapid review is, exactly.
Dr Shona Arora: So it is a review of existing evidence and studies and trials carried out usually more rapidly. So to actually do this properly can usually take months and months to go through. So obviously we don’t have time in a pandemic situation, or even in an outbreak situation of something relatively new like Mpox, so we have an approach that uses particular techniques that allow you to still produce something of reasonable high quality to define the scope sufficiently, specifically and narrowly enough of the review but also then to research sufficiently to gather a range of materials. And those are then brought together and synthesised to try and establish whether or not you can conclude of the direction of travel in favour of a particular intervention or group of interventions or otherwise or in particular settings, or otherwise.
Counsel Inquiry: Okay. So you’re doing a sort of scan of the evidence that’s available –
Dr Shona Arora: Yeah.
Counsel Inquiry: – and working out roughly what the state of play is?
Dr Shona Arora: Yes.
Counsel Inquiry: Whether there’s good evidence to support something or not?
Dr Shona Arora: Yeah.
Counsel Inquiry: Okay. And this particular rapid review, this wasn’t conducted during the pandemic; this is evidence up to I think you told us 2024?
Dr Shona Arora: – ‘4.
Counsel Inquiry: Is that right? Okay. So if we can turn then to page 28, please. Thank you very much.
The conclusions we are interested in are:
“Consistent with other reviews, we found the validity and reliability of the available evidence to support the effectiveness of individual NPIs to control the spread of COVID … to be weak and not to provide robust evidence to inform future pandemic preparedness.”
So that we are clear, the NPIs that were reviewed, they included ventilation and air filtration; is that right?
Dr Shona Arora: I’d need to check in detail on that one, it’ll be in one of the tables. But I know – I’ve also looked – we’ve referenced the McMaster –
Counsel Inquiry: Yes –
Dr Shona Arora: And that also looked at ventilation and they looked in a number of community settings and their latest living evidence review identified studies in two educational settings – (overspeaking) – range.
Counsel Inquiry: Okay, we will come on in a moment to evidence specific to ventilation air filtration but focusing now on this sort of rapid review, it says, to continue:
“The main lesson from this review is the need to improve evidence generation to support future pandemic decision making, including building rapid evaluation into the response to the pandemic and other public health emergencies. This includes the development of ‘sleeper’ study platforms and protocols, which can be activated during an epidemic or a pandemic … Another approach is the delivery of rapid adaptive trials for the simultaneous testing of various NPIs …”
Can you help us in, sort of, plain language what is needed in future pandemic planning to help us plug this gap in knowledge?
You can take that down now. Thank you.
Dr Shona Arora: Okay. So I think what we’re – what the initial opening sentence said was what we’ve discussed, which is the quality of the evidence is not as strong to give us as much confidence as we would like. One way we could address that, looking forward, it takes time to set up studies which will inform the evidence, and we can work on trying to design the frameworks for those studies and develop protocols that we wouldn’t activate now but would be on the stocks, and use peacetime to more thoroughly test out the methodologies that we might use, because obviously in a pandemic, if you’re starting from scratch, then, and designing something from scratch, you’re more likely to not have thought through where biases might be and how you might correct for them.
So that’s idea behind that.
The other approach is to have something – the other approach referred to is something that, as you go through the trial, you bring in different elements, and you create a more agile approach to looking at what you’re trying to do sequentially.
Counsel Inquiry: Is that something that UKHSA is undertaking at the moment?
Dr Shona Arora: It’s something we, amongst others, are looking at and part of the research community. So through the National Institute for Health Research and the UK Research and Innovation approach, and through the DHSC Research Framework for Pandemics is something that’s being developed through the current pandemic preparedness workstream.
Counsel Inquiry: Okay. I’m going to move on now to a different topic, which is whether plans to make schools safer in the future ought to focus on airborne pathogens. You’ve dealt with this in your statement at paragraphs 5.2 to 5.7, but can I just ask you generally whether plans to make schools safer should focus on pathogens which are transmitted through the air as opposed to pathogens which are transmitted via other routes of infection?
Dr Shona Arora: So, overall, our pandemic preparedness framework for the UK focuses on five routes of transmission, of which respiratory is one. It’s fair to say that five out of the six pandemics that have occurred since the 20th century have been respiratory and airborne. And I think our National Risk Register also signals that’s still the highest risk. So it would certainly make sense to start with prioritising that.
However, there are potentially still other routes of transmission that could cause a pandemic. So we do need to be mindful of that and be thinking about those routes as well, and not – not be completely focused. But as a priority to start with, that would be one that is probably the most likely.
Counsel Inquiry: Okay. I’m going to take you now to the witness statement prepared by Professor Sir Chris Whitty which deals with this topic, and just see if you agree with his conclusion.
So his reference is – for his statement is INQ000588046, and we’re looking here at paragraphs 7.5 to 7.6.
The statement is:
“The route of transmission is also important. Touch and faeco-oral transmission may both be more likely in children, and especially younger children, than young adults. COVID-19 was a respiratory pandemic, but other routes of transmission would have different implications for the relative safety of, and proportion of the transmission to and from, children. Respiratory transmission remains the most likely route of pandemics because of its ease of spread, and in practice 4 of the last 5 pandemics that affected the UK (three influenza and COVID-19) were respiratory with only one … by other routes [and that was the HIV pandemic]. It is therefore sensible to concentrate on respiratory routes of transmission. Children are as susceptible to respiratory routes as adults.”
So it sounds like you’re on the same page there.
Dr Shona Arora: Yeah.
Counsel Inquiry: That it sounds the most likely but certainly you can’t rule the others out, I think?
Dr Shona Arora: Yeah.
Counsel Inquiry: If we can move on to then to 7.6:
“Historically … other routes have caused major pandemics affecting children and there is no reason they cannot again. Sexual routes of transmission are much less likely to affect children …”
And that’s why the last pandemic, HIV, was predominantly a disease of young adults.
“Vertical bloodborne/breastfeeding transmission of HIV between mothers and … babies shows that …”
The transmission between mother to children is critical there.
“Hepatitis B which is a sexual and bloodborne virus is transmitted mother-to-child, and is readily transmitted between children in normal play … Young children are much more susceptible to touch diseases than adults, a reason example being some clades of Mpox in central Africa. Adults touch children in normal caring roles, and children touch one another much more readily than non-related adults touch one another … Preventing touch diseases requires different measures than were used for COVID-19. Children are generally less question in hygiene than adults, so faeco-oral diseases such as cholera are often more common in children; again the measures taken to reduce transmission would be different, requiring measures related to hygiene and safe food and water.”
And finally:
“Vector-borne diseases are also important in childhood globally (such as malaria …) … with different countermeasures, but are unlikely to affect the UK as pandemics in the foreseeable future.”
So, Professor Sir Chris Whitty there is giving us a bit of a rundown of the different routes of transmission, how children can be implicated in them, explaining that even illnesses that are not airborne still have implications for children, and some, such as touch diseases, would be perhaps more risky for children.
So, overall, other routes of transmission certainly can’t be discounted, I think.
Dr Shona Arora: Yes.
Counsel Inquiry: We can draw that conclusion from his evidence. And you would agree with that?
Dr Shona Arora: Yes.
Counsel Inquiry: Is that right?
Dr Shona Arora: Yes.
Counsel Inquiry: Thank you.
We can take that down.
You mentioned in your evidence the National Risk Register.
Dr Shona Arora: Mm-hm.
Counsel Inquiry: Can you just tell us briefly what that is.
Dr Shona Arora: So the National Risk Register is, I think, owned by the Cabinet Office, and it’s our – it is what it says on the tin: it’s an assessment of a whole range of risks facing the UK.
It’s a public-facing document. And it sets out risks on all sorts of dimensions, not just health – so, for example, cybersecurity is another one – and attempts to rank the – not rank, but – but score the risks based on likelihood and impact, to give some indication of how serious they might be, and which ones are likely to be the most common.
And there is a section on health risks in there which includes risk of a future pandemic.
Counsel Inquiry: And in that planning, it is a respiratory pandemic –
Dr Shona Arora: Yes.
Counsel Inquiry: – that’s the predominant risk. Okay.
I’m going to move on now to evidence regarding ventilation and filtration systems and their effectiveness in reducing the transmission of disease in schools.
You deal with that in your witness statement at paragraphs 5.16 to 5.18, and also 6.8 to 6.12.
Professor Catherine Noakes has provided a statement to the Inquiry, and she will give evidence next week touching on this issue, specifically on this issue. I understand you’ve had a chance to read her statement it; is that right?
Dr Shona Arora: (No audible answer)
Counsel Inquiry: If we could just pull up paragraph 6.8 of her statement, which is INQ000588180, these are her conclusions about the state of the evidence. So she says that:
“Evidence that demonstrates ventilation of air cleaning reduces transmission of infection or illness is very limited.”
And she says:
“This is primarily because such data is challenging to obtain for two reasons …”
And these will sound a bit familiar to us, after your other evidence regarding NPIs, but firstly she says:
“(1) There is not necessarily a linear relationship between the reduction in the concentration of a pathogen in the air … and the reduction in the likelihood of infection.”
And then if we could just scroll down, please, to the second point. Thank you.
And she says also:
“(2) Direct evidence from intervention studies is difficult to measure. Unlike medical trials where different treatments can be given to individuals and the treatment only affects that person, ventilation is an environmental measure which affects a building and everyone in the space. As such it may have different effects over a day or season depending on [things] such as the weather and the occupant behaviours. It is hard to conduct studies that compare directly between different spaces which have different levels of ventilation … Where an intervention is applied in one setting [for example a school] … the same people can be exposed through interactions in other spaces (eg homes, transport, social settings) which can reduce or even negate any effects in the intervention.”
So we can, I think, readily see that if we had, for example, a trial in a school providing air cleaning technology, but those children travelled to the school by bus and are exposed to pathogens in that way, it would be difficult, perhaps, for the scientists to work out exactly how much benefit the children were getting from air cleaning.
Would you agree with – firstly, with Professor Noakes, about the evidence that’s currently available to support those ventilation and air-cleaning technologies?
Dr Shona Arora: Yes, around these two paragraphs, around – yes, I think that’s a very fair assessment.
Counsel Inquiry: Yes, okay. And would you agree with her about the reasons for the paucity of evidence, and that – that being that direct evidence is difficult to obtain for the reasons she states, and also that – the absence of a linear relationship between the reduction in pathogens in the air –
Dr Shona Arora: (Witness nodded)
Counsel Inquiry: – and infection rates in individuals?
Dr Shona Arora: Yes.
Counsel Inquiry: That can be taken down now.
But bearing in mind that paucity of evidence, Professor Noakes’s view is that there is growing evidence that indicates that enabling better ventilation and indoor air quality does have a positive effect on the health of children, and that’s for reasons, she sets out in her statement, of reducing air pollution, for example, or mould in classrooms.
Dr Shona Arora: Yes.
Counsel Inquiry: So, bearing that in mind, in your view, should more be done to improve the ventilation and air quality in education settings to reduce – well, actually, I’ll just stop there. Should more be done to improve ventilation and air quality in education settings, in your view?
Dr Shona Arora: So, obviously that isn’t a decision for UKHSA to make, but I think we’ve heard the narratives that – and even from the McMaster living review there is emerging evidence, notwithstanding the fact that it’s really hard to get high-quality evidence, that indoor air quality matters for a whole range of issues. Not just for infectious disease transmission, but for concentration or other matters of wellbeing. And that includes what’s described as thermal quality, so basically whether you feel too hot or too cold.
There’s – I think there’s definitely room for extending this evidence base further, and I believe there is a new UKRI-funded study called CHILI, which is the Children and adolescent Health Impacts of Learning Indoor environments, that’s been established, led by University College London, and UKHSA will be participating in that as well, and helping with one element of that.
And that, I think, will give us stronger focus on school settings in particular. So I think definitely the need to strengthen the evidence base. And that’s because I think when you’re applying a universal measure like that, it’s – obviously, there’s a cost implication. You want to make sure you’re doing the right thing and you want to understand also some of the complexities around some of the interventions. So I think, again, Professor Noakes refers to, sort of, anything mechanical needs to be maintained. There’s often – you know, there’s a risk of false reassurance, there are trade-offs, particularly in a classroom environment, between noise and getting this right.
So I think we definitely need to start building that evidence base, particularly around some of those specifics, so that decisions can be made and informed by that more appropriately across the education sector.
Counsel Inquiry: Okay. So if I understood you correctly, we need to build that evidence base prior to decisions being made about improving ventilation and air quality in education? Is that what your advice would be, as UKHSA?
Dr Shona Arora: I mean, there is existing evidence. There is a trade-off, I suppose, on what other requests are made on limited resources. The schools estate is very mixed. I think the point that’s also made is making sure that we have good building standards in place for particular – and I think that’s much easier to do with new builds. I think some of the challenge is around retrofitting but I think we just need to be careful that we are making sure that any investment is really going to produce the outcomes that are needed.
Counsel Inquiry: While we’re still on the subject of ventilation in schools, and building standards, in your statement you confirm that during the pandemic – and we’re going back now to 2020 – during the pandemic, guidance on ventilation specific to schools wasn’t provided by PHE.
Dr Shona Arora: Mm.
Counsel Inquiry: Schools were referred to general guidance on ventilation which covered businesses, I think, in non-domestic settings.
Dr Shona Arora: Mm.
Counsel Inquiry: Professor Noakes, in her evidence, makes clear that schools have certain unique features which are relevant to the transmission of pathogens. So for example, schools are unlikely to have mechanical ventilation as businesses might have or offices might have. And schools are obviously used by adults and children together, and some non-pharmaceutical interventions like mask wearing might be difficult for children to comply with, to use appropriately.
Would you agree that ventilation guidance specific to schools ought to have been given by PHE during the pandemic?
Dr Shona Arora: So this is a quite difficult one. I think if we go back to the start of the pandemic and what we knew about the virus at the time, there was a stronger focus on droplet spread and less so on aerosol spread and therefore a stronger focus on the measures that you would normally apply in that case.
I think the other thing is we knew there was guidance being produced by DfE for schools, and that I think that would have been the appropriate place to address that as the evidence base emerged. So I think we, as PHE, were providing much wider principles that could be used. There was also advice, again more general and not specific to schools, through the Health and Safety Executive, but I think in the early stages when we didn’t really know the role of ventilation that it might play, I think it was difficult to have specific guidance at that point on ventilation. And later on I think it was picked up through the guidance produced by DfE.
Counsel Inquiry: But if PHE was referring schools to generic guidance, I appreciate not as much was known at the time about transmission rates, but come – at a certain point, it was clear that airborne transmission was a factor, and PHE did refer schools to ventilation guidance, there’s no good reason, is there, for referring them to guidance which is applicable to offices as opposed to specific guidance relevant to schools?
Dr Shona Arora: I think at the time that reflected what we knew in terms of the evidence base, which was slightly stronger on multiple other settings. As I’ve said, the evidence base around school settings was quite thin, and has improved, because the pandemic has provided some opportunity to do that. And again, I think what we would see our role doing is then supporting sectors to produce specific guidance for those sectors that reflected the evidence base, but could then be more tailored to the sector understanding and sector context.
Counsel Inquiry: But you would have had input in DfE guidance touching on health measures –
Dr Shona Arora: Yes.
Counsel Inquiry: – that’s right, isn’t it? Okay. But if I’ve understood you correctly, what you’ve also said is that there wasn’t enough – there wasn’t an evidence base at the time to enable you to develop guidance specific to a school setting?
Dr Shona Arora: Yes.
Counsel Inquiry: Have I understood that correctly?
Dr Shona Arora: Certainly at the beginning, yes.
Counsel Inquiry: Okay. I’d like to move on now to the measures, pardon me, to the recommendations made by Professor Noakes which touch on areas of UKHSA’s responsibility.
So one of the recommendations that Professor Noakes makes is that there should be more effective monitoring with long-term data collection. So she cites an example of schools in the United States which had CO² monitors and they were able to feed back information in real time to a central data collection point so that there could be a long-term monitoring of the effectiveness of measures put in place.
And Professor Noakes makes a recommendation that we have that long-term data collection across public buildings, supporting building the evidence base for environmental impacts on health.
Is that something that would sit within UKHSA’s purview, spearheading that – the development of that long-term data collection?
Dr Shona Arora: I think it wouldn’t necessarily be us to spearhead. I think we’d certainly be there to support, and I’ve alluded to our role in the CHILI hub to support – again, DfE, I think, are taking a leadership role and have provided schools with carbon dioxide monitors and are looking at that, and there is another study that we’re awaiting the publication of which will also help to inform approaches, I think it’s now called the Bradford Class Study which, again, DfE have been very instrumental in.
So I think we would potentially have a supporting role alongside other academic institutions and other bodies with engineering and building expertise, but for the schools sector, I think DfE are absolutely critical in this.
Counsel Inquiry: Just taking a step back, it seems that there’s various government departments and academic organisations that could be involved in managing the school environment. You mentioned environmental expertise.
Dr Shona Arora: Mm.
Counsel Inquiry: We know, also, that the Department for Education issues guidance, for example, on building design?
Dr Shona Arora: Yes.
Counsel Inquiry: UKHSA is responsible for guidance on health protection measures within schools. So one gets the impression that there is a sort of group of actors that have shared responsibility in this sphere.
Where would you say, or where would UKHSA say, in government lies the overall responsibility to consider future NPI measures in schools?
Dr Shona Arora: So I think the responsibility has to sit with the government department responsible for that sector, because there’s obviously schools, but there’s businesses, there’s all sorts of other sectors. I think our role in UKHSA is to support with advice – evidence-based, advice carrying out evidence-based reviews, contributing to the research where we can, using our data and surveillance to identify issues that might be coming up to provide an input into where we think the gaps are in research and evidence, and in appropriate interventions.
Counsel Inquiry: So if we’re talking about schools in particular, I take it from your answer you would say that it’s DfE who hold the overall responsibility for considering future NPI measures in schools? And UKHSA’s role would be to support with advice but perhaps, from what you’ve said, UKHSA would also be responsible for prioritising the kind of studies that are needed to plug the gaps in knowledge?
Dr Shona Arora: And again, I don’t think we would do that alone. I think we’d be one of a number of contributors with expertise in this field through the academic routes and the academic structures and governance that exist to support this.
Counsel Inquiry: I see. I’m going to move on now to another topic, and that is the guidance given to clinically vulnerable and clinically extremely vulnerable children and young people. We’re focusing here in this module on children, so I’m really going to focus on the guidance that touched on school attendance.
Just to set the background, in March of 2020, PHE issued guidance on shielding. We don’t have to pull that up, but that guidance advised those with certain specific conditions who were clinically extremely vulnerable to shield for 12 weeks from the receipt of the letter. The guidance in that first iteration, it didn’t distinguish between adults and children, but it said, at the end, that the guidance applies to clinically extremely vulnerable children. So that was the beginning.
If we move forward, then, to May of 2020, the Department for Education issued guidance concerning clinically vulnerable and immunocompromised children and young people, and we know, just before we go to it, Julia Kinniburgh, from the Department for Education, in her statement, she says that guidance was completed with PHE’s assistance, but we know from what you said earlier that PHE would have had input on that public-facing guidance in any event, under the triple lock procedure, if I’ve understood your evidence correctly?
So if we move to that guidance now, it’s INQ000542889.
So it was termed “Supporting vulnerable children and young people during the coronavirus … outbreak – actions for education providers and other partners”.
Then if we scroll through, please, particularly to page 5, yes, the “Summary of attendance expectations for vulnerable children and young people”. So this was May 2020, the lockdown had been in place for over a month, approaching two months.
This is attendance expectations for vulnerable children.
Now, so that we’re not confused, this is talking about vulnerable children under the sort of Department for Education’s definition, so not – that’s not about clinically vulnerable children but about children who were required to attend school because they had, for example, a social worker –
Dr Shona Arora: Mm.
Counsel Inquiry: – or an EHCP plan or were classed as otherwise vulnerable.
And so this guidance is setting out attendance expectations for them. And it says that their attendance is expected.
And if we go to the first bullet point there, it says:
“For vulnerable children and young people who have a social worker, attendance is expected unless the child/household is shielding or clinically vulnerable …”
So the “shielding” reference there would be to children who are clinically extremely vulnerable, one would imagine?
But there’s also the separate category of children who are clinically vulnerable. Do you see that?
Dr Shona Arora: Yes.
Counsel Inquiry: Okay.
If we go over the page to page 6, under the first bullet point, there’s further guidance that says:
“For all these groups [of children], educational providers, local authorities, social workers, parents [and] carers and other relevant professionals … should work together closely to consider factors, such as the balance of risk, including health vulnerabilities, family circumstances, risks outside the home, and the child or young person’s assessed special educational needs, where relevant.”
So it’s giving parents and also other adults with responsibility for that child, it’s giving them permission, if you like, to weigh competing interests, including their health vulnerabilities, in deciding whether attendance is appropriate for those children.
We can take that down now.
In your witness statement you explain that the category of clinically vulnerable as opposed to clinically extremely vulnerable was removed as regarding children in May of 2020.
So if we can go to your witness statement, INQ000588110, paragraph 3.94 deals with this. And it says:
“While a cohort of children was considered, on a precautionary basis to potentially fall within the CEV group when it was originally defined, the guidance in relation to CV children was reviewed by the RCPCH …”
That’s the Royal College of Paediatrics and Child Health?
Dr Shona Arora: Mm.
Counsel Inquiry: “… and the NHSE clinical director for children in early May 2020. The conclusion they reached right was that the middle ground category of CV was not meaningful as applied to children, who were either [clinically extremely vulnerable] or not at materially increased risk from contracting the virus. It was agreed by the UK CMOs that only those children with significant neuro-developmental and other specific conditions needed to be advised to shield.”
Can you help us with why the DfE guidance issued in May referred to clinically vulnerable children, whereas it seems – we don’t have the exact date but here it says in early May that category was made obsolete as regards children?
Dr Shona Arora: So I think it was … it’s hard; I wasn’t part of these discussions at the time. The clinically vulnerable, clinically extremely vulnerable programme was led from the department because it did require significant input from clinicians in the NHS.
Counsel Inquiry: Yes.
Dr Shona Arora: I think probably it was a matter of timing, because I think it was June before that evidence, which I sort of talk about later on at 3.95, from the RCPCH was perhaps made more strongly available.
Counsel Inquiry: Yes.
Dr Shona Arora: So I think –
Counsel Inquiry: Sorry, thank you very much. We’ve got it up here, we can just have look.
Dr Shona Arora: Okay.
Counsel Inquiry: This is:
“On 10 June 2020, the RCPCH announced updated advice for clinicians on shielding for [children and young people] … That advice emphasised that: ‘According to the new … guidance, the majority of children with conditions including asthma, diabetes, epilepsy, and kidney disease do not need to continue to shield and can, for example, return to school as it reopens. This includes many children with conditions such as cerebral palsy and scoliosis, for whom the benefits of school – in terms of access to therapies and developmental support – outweigh the risk of infection’.”
Dr Shona Arora: So I think what this is showing is this is an illness that we haven’t had much of a chance to know much about. It’s moving quite quickly. As clinical evidence of severity was emerging, that evidence was being used to assess what was appropriate for different groups of children and young people.
But we’re talking about sort of May 2020, June 2020, so I think that just illustrates, particularly at the beginning, how fast moving things were. And again, coming back to initially the – the – at the beginning, I think the thought was to be a bit more precautionary, which was why there was a wider net cast, but clearly the implications of shielding, and particularly for children and young people, are huge.
So, being able to limit that to the ones who are really going to – where the benefits really are going to outweigh any harms was really important. Which is why I think the sort of work being done by the RCPCH and through the NHS and the CMO was really important and being done at pace, whilst at the same time, we’ve got – you know, from March to May, the – still the taking a bit of a more precautionary approach.
Counsel Inquiry: Okay. We can take that down now, thank you.
And can you tell us, did Public Health England agree with the RCPCH and NHSE that the clinically vulnerable category was not meaningful as applied to children who were either CEV or not at materially increased risk?
Dr Shona Arora: So, in the context of – if I can just step back and look at how the clinically vulnerable cohort and programme was dealt with. It was, as I say, led by the CMO office, and it pulled in advice from Public Health England, but more around the epidemiology and those aspects.
The decisions around clinical categorisation really needed to be led from the right areas, so NHS England, the clinical directors, which is not PHE’s area of expertise. So I think we would have accepted that it more important that the CMOs were happy with the evidence that they were being presented with through the clinical community.
Counsel Inquiry: I see. So we will be hearing from Professor Sir Chris Whitty next week. We can ask him about that.
There’s one other matter of clarification I’d like to ask on this point before we move on. CV Families, a Core Participant, have asked for clarification: their understanding is that children who had been “clinically extremely vulnerable” were sort of downgraded to being “clinically vulnerable” in September of 2021, and so their understanding is that the clinically vulnerable category was not removed for children but it was now the category that all the previously clinically extremely vulnerable children moved to.
And before I ask you to answer that, to give us your thoughts on that, I’d like to move to the guidance.
If we could pull that up, which is INQ000348076.
So this is guidance from both the Department of Health and Social Care and PHE from September 2021, and it’s the guidance which indicated that children should no longer be classed as clinically extremely vulnerable.
And if we can move to page 3 of that.
It says here:
“What has changed
“Recent clinical studies have shown that children and young people are at very low risk of serious illness if they catch COVID-19. As a result, children and young people under the age of 18 are no longer considered to be clinically extremely vulnerable and should continue to follow the same guidance as everyone else.
“A very small number of children and young people will have been advised to isolate or reduce their social contacts for short periods of time by their specialist, due to their general of infection rather than because of the … pandemic. If this is the advice for your child, they should continue to follow the advice of their specialist.”
With that guidance in mind, can you tell us, is it correct that children who had been clinically extremely vulnerable were downgraded into the category of clinically vulnerable?
Dr Shona Arora: That’s not my reading of this particular guidance. I think what – I think there’s beginning to be a move away generally from overuse of “clinically extremely vulnerable” as, you know, vaccination programmes came onstream, we had better treatments. And I think what this was beginning to do was trying to return to a bit of a new normal.
So, there will always be a small group of children who, because they’re very immunosuppressed or are undergoing chemotherapy or something like that, will be at risk of anything infectious disease, and I think what this was beginning to say, in the context of what we understood to be the overall impact and severity of Covid-19 in children, those children, their susceptibility should be managed – to Covid should be managed in the same way that you would manage them in terms of their risk of any infectious disease, which they could equally well be very prone to.
So, that’s, I think, what – it’s acknowledging that there are always going to be a small cohort of children who are very vulnerable to infectious disease, either acquiring it or suffering more severe consequences, but that’s true of other infectious diseases and not just Covid.
So I don’t think it was about downgrading from CEV, I think it was trying to assist in how we managed a return to – integrating Covid into how we manage other infectious diseases as we start coming out of the more serious waves of the pandemic.
Counsel Inquiry: Thank you.
One final question on this point. We’ve had evidence from Ms Lara Wong from Clinically Vulnerable Families, and their organisation uses a part of the Green Book, which is a UKHSA publication which provides guidance in relation to immunisations. And it contains certain criteria for children who are classed as clinically vulnerable to Covid.
And I think there’s some confusion here about children being classed as clinically vulnerable when it comes to vaccines, but not, for example, when it comes to schools.
Can you help us, why might there be a categorisation of vulnerability in relation to vaccines and not in relation to schools?
Dr Shona Arora: I think – I guess it depends on the – the answer to that is it’s the questions being posed are different.
So, vaccine prioritisation is determined by – or recommended by the Joint Committee on Vaccination and Immunisation, of which PHE and now UKHSA are a member, and provide support. But consists of a range of other experts. And they will be looking at the evidence of how effective a vaccine would be in either reducing transmission or preventing a severe outcome. And that might be different from – in a school setting, the question you’re asking is: how safe is it for this child to be in school in the round? What are the trade-offs by them not being in school? What harms are they experiencing by being taken out of that setting, and what are the mitigations, if they are in school, to keep them safe and protected?
Lady Hallett: Also, as I remember the policy for vaccination, the committee chose the clinical route. Basically, priority was decided –
Dr Shona Arora: – (overspeaking) – clinical, yes.
Lady Hallett: You may have all sorts of – but that was the way they decided and it was based on some pretty standard evidence that –
Dr Shona Arora: Yes. So, JCVI tend to base their decisions very much on a very clinical – clinically. You know, what is the biology behind this? What is someone’s immune status? They are they likely to react to the vaccine?
The question you’re asking in the context to a school is: what is the best thing we can do for this young person or child to give them the best possible health outcomes and keep them safe in all sorts of ways and protect their development?
Ms Pottle: Thank you.
PHE issued guidance on 4 August indicating that children who were clinically extremely vulnerable could stop shielding and could attend schools when they reopened. And we don’t need to move to that guidance now, but the position when schools did reopen in September was that all children were required to attend. So shielding was still active but it had been paused at that stage for children.
And what I’d like to explore with you is whether the advice on school attendance for children struck the right balance between protecting health but also promoting education. So you’ve told us about this, sort of, trade-offs for young people.
Dr Shona Arora: Mm.
Counsel Inquiry: Can you summarise for us what the evidence shows about the effect of school openings on transmission rates.
Dr Shona Arora: So again, I think it’s not as straightforward as we would like it to be. There is some evidence that says if you open schools you’re likely to see an uptick in the number of cases, but what the overarching message I would give is that school – transmission in schools and the role of schools in Covid-19 is very much linked to background transmission and rates in the community, and prevalence in the community. So if you’ve got high rates of Covid circulating in the community, schools are part of that, and it’s a dynamic two way. So if you’ve got low prevalence in the community, schools actually have very little negative impact – ie, they don’t contribute to transmission going up markedly.
Counsel Inquiry: Can you, and this a slightly different question, but can you tell us whether children who attended schools in the autumn of 2020 were more likely to catch the virus than children who did not?
Dr Shona Arora: So in August 2020, overall community prevalence was relatively low, and I think at that stage my recollection was that they were not – there was no evidence to suggest that they were more likely to, so that’s obviously pre-Alpha wave, but at that point, when schools reopened and overall community rates were low, transmission rates in school would have been low, as well.
Counsel Inquiry: Okay. And I think you might have misheard me, I said autumn 2020, not August.
Dr Shona Arora: Oh, sorry.
Counsel Inquiry: Does that hold true for September, October?
Dr Shona Arora: So again, we were just beginning to see the emergence of the Alpha variant then, and so community transmission was beginning to go up, but that was across the community, and not particularly in schools.
Counsel Inquiry: Okay. But then again the, sort of, slightly separate question of whether children who went to school, as opposed to those that stayed home, would they have been more likely, do you think, to catch Covid? Or can you not tell us?
Dr Shona Arora: I think I – I couldn’t completely tell you that. I don’t think there was any evidence that looked at that, answering that particular question, and I suppose it depends what you mean by staying at home. If you mean shielding, probably, because shielding is such a – in any context, if there’s any virus circulating then you’re really, really isolated, but staying at home doesn’t – if you’re not in that extreme setting, it doesn’t necessarily mean you’re not going to be exposed to the virus if you’re out in other settings or environments, and that you are equally likely to acquire Covid from those.
Counsel Inquiry: Okay. We know that tragically there were some deaths of children and young people in England from – with each wave of the pandemic.
Dr Shona Arora: Yes.
Counsel Inquiry: And we can see in your evidence a study which is at INQ000413012, a study which looks at the deaths in children and young people in England after infection. It’s actually very difficult to make out, but the summary at the top tell us that – we can see a total of 99.995% of children and young people with a positive test survived, but there were 25 deaths of children and young people due to Covid infection. You can see that just above.
Dr Shona Arora: Mm.
Counsel Inquiry: It’s not dealt with in this study, but we know that children and young people were also, of course, at risk of developing Long Covid as a result of infection.
Now, I want to ask you, overall, given the risks of infection to young people, and the risk of death, do you think that the advice on school attendance struck the right balance between protecting young people, their health, and their access to education?
Dr Shona Arora: So I think that’s a really – it’s difficult to answer because with hindsight, and also not being there at the time, but I think what I would say is it’s often quite – you’re balancing a lot of complex issues in the messaging that you’re giving out and you also want to give sufficient clarity about what, on balance, you think, in terms of overall risk, you should be steering members of the public towards.
So I think it’s always difficult to get that balance right, and particularly at any one point, because again, as I said, in August things felt very different from November of that year, as well, and certainly in December and January. So I think, at the time, I think it was trying to send a clear signal that the data and the evidence that we had on the behaviour of the virus at that stage was that children did experience less severe disease than adults, mortality was much lower in children and young people, and keeping them away from school and imposing – or not imposing but asking them to shield was perhaps, you know, again, it’s that risk of, a balance of risk and benefit.
Counsel Inquiry: Thank you. That can come down now.
I’m going to move on to one more topic before the break, and that is Long Covid. Can you help us, when did Public Health England become aware of the susceptibility of children and young people to Long Covid?
Dr Shona Arora: So I think, like the rest of the scientific community, fairly early on, around, I think May time, there was a sense there might be something. I mean, the other thing is, I know it was mentioned in the previous exhibit you showed, there was also an awareness of PIMS, Paediatric Inflammatory Multisystem Syndrome, which also was of great concern. But I think there was the beginning of an awareness that there may be something else as well, not just in children, obviously, but in adults around Long Covid. It was very ill-defined, and I think continued to be so, but as the pandemic went on, I think again, there’s more evidence emerging about it.
Counsel Inquiry: Do you think, was there a lag between the appreciation of Long Covid in adults as opposed to children?
Dr Shona Arora: I’m not sure there was. I personally haven’t looked at the evidence to see whether there was. I think there’ll be naturally more of a focus on adults because adults were experiencing more severe illness generally speaking, and I think a reasonable hypo – and there would have simply been more of them and more hospitalisations and more follow-ups, so it may have been picked up, and I think the other thing that seems to be emerging is that it may manifest itself slightly differently in children and young people and particularly it’s – you’d probably expect to see people who have been seriously ill or been in ITU or been in hospital might be more likely to have longer term sequelae, and of course there were much fewer children in that situation.
Counsel Inquiry: Okay. I’d like to ask you now about views expressed by a consultant paediatrician employed by PHE England in a stakeholder meeting chaired by the Department for Education in June of 2021.
If we could pull up the minutes from that meeting. It’s INQ000542824.
So we can see the meeting took place on 9 June. And that’s 2021. It took place via Teams. We can see the list of attendees in the stakeholder meeting.
It’s hosted by DfE, but there are attendees from PHE, Dr Shamez Ladhani, who’s a consultant paediatrician, and there are attendees from trade unions, Local Government Associations, and from schools, as well. And if we scroll to page 3 of these minutes, Dr Ladhani says:
“Long Covid could occur under a variety of scenarios and Dr Ladhani highlighted the fact that any instances of fatigue or prolonged sense of feeling unwell with COVID-like symptoms in the last year would likely be blamed on COVID-19.
“Cases in children do not give us an indication of the general population. The pandemic has taken a huge toll on children and families, irrespective of whether they have had the virus or if it is due to lockdowns or school closures. Dr Ladhani was clear that children should not be labelled with Long Covid (ie a medical condition) as this has the potential to cause longer-term psychological harm.”
It’s not entirely clear whether Dr Ladhani is saying that no children should be labelled with Long Covid because it doesn’t exist or whether he’s saying that it’s being misreported or confused with other illnesses. But if Dr Ladhani is saying that no child should ever be labelled with Long Covid, because it’s not – doesn’t exist, is that a view which was widely held at PHE? Can you –
Lady Hallett: I should also say, before you answer, to give you time to think, that it’s not also clear that the minutes are necessarily accurate.
Ms Pottle: That’s correct, yes.
Dr Shona Arora: So, I think that was my first point –
Lady Hallett: Oh, I see. Sorry to interrupt then.
Dr Shona Arora: Thank you. And, of course, none of us were in the room. And I think – I don’t think anybody at the time was denying the existence of Long Covid in children. I think the issue that clinicians and public health experts, not just in the UK but globally, were grappling with was: what is this thing and how do we define it? Because there were a long list of symptoms – and particularly at the beginning, at an early stage, when you’ve got a complex syndrome emerging and you can’t spot an obvious – there’s not, you know, just one really specific set of symptoms.
So I think the issue was about mislabelling, if you like, and understanding – making sure that you’ve got a sufficient case definition that is sufficiently specific that also means you can advise children and parents and carers, and clinicians can take appropriate action and not conflate it with other things that might require a different response.
So I think that was the genuine issue that was being grappled with at the time, and I think it’s only fairly recently, actually, that WHO have – and the UK have come up with tighter case definitions based on the CLoCk study and some of the work that the UK has done subsequently.
So, I don’t think it was an attempt in any way to dismiss or deny the existence. I think it was in the context of – and that’s why I think the minutes may not necessarily completely reflect the complexity here, but the complexity of the issue that was being grappled with, and how you identify exactly what this phenomenon is in a way that is appropriate, and particularly in children and young people, and then how you can respond to that.
Ms Pottle: And just finally before the break, we’ve heard evidence – the Inquiry has heard evidence already from an organisation, a Core Participant, Long Covid Kids, about the real damage that a dismissal and denial of Long Covid in children did to families and young people.
Is it Public Health England’s – well, now UKHSA’s position that Long Covid in children is a paediatric illness and one that families and the sufferers, the children themselves, ought to have support from the government, and including UKHSA?
Dr Shona Arora: Mm, mm.
Counsel Inquiry: And that a denial or dismissal is wrong?
Dr Shona Arora: So, I think as I said earlier, I don’t think it’s ever been denied or dismissed. I think the difficulty is identifying something specifically enough that can then lead to an appropriate treatment and management pathway of support, and it is now something that – that element, I think, increasingly will – sits very much with the NHS and with clinicians and requires, really, further research and understanding to understand what interventions and what support needs to be put in place to really help children and young people who are suffering from some really severe and long-standing symptoms.
Ms Pottle: Okay. Thank you very much.
I think now is an appropriate time for a break, my Lady.
Lady Hallett: It is, Ms Pottle. Thank you very much.
You were probably warned that we take breaks, but I promise you that we shall finish you by midday.
The Witness: Thank you.
Lady Hallett: So I shall return at 11.30.
(11.14 am)
(A short break)
(11.30 am)
Lady Hallett: Ms Pottle.
Ms Pottle: Dr Arora, the last topic from me this morning is about Public Health England’s advice provided to the Ministry of Justice concerning the detention of children in the youth estate.
A former colleague of yours, Dr Éamonn O’Moore, was primarily responsible for this work, and he provided a witness statement to the Inquiry.
And for the record, the reference for that is INQ000649899.
A criticism has been made by Ofsted that PHE’s guidance was not sufficiently focused on the distinct needs of children as opposed to adults who were held in the secure state. And I’d like to take you through some of the guidance now to explore that issue.
Firstly, we have a briefing which was prepared by Dr O’Moore considering population management in response to the Covid-19 epidemic. And that briefing is from 24 March, and it was relied upon as a basis for restrictions to the regime for prisoners, both for adults and children.
And the reference for the briefing is [INQ000591144]. And it’s summarised at the head. It says:
“Prisons are high-risk settings for large outbreaks of COVID-19.
“Many people in prisons are in clinically vulnerable groups.
“Risks include excess death rates; need for specialist NHS care …
“A specific objective should be to reduce as far as possible all forms of shared accommodation.
“Single cell accommodation has distinct advantages in supporting … [the] (‘shielding’) of vulnerable prisoners …”
If we scroll down the page, please, Dr O’Moore explains why prisons would be more at risk of high infection rates, and he says:
“Prisons concentrate individuals who are susceptible to infection and those with a higher risk of complications. COVID-19 has an increased mortality rate in older people and in those with chronic diseases … [and] multi-morbidity is normative among people in prison …”
Then, towards the bottom of the page, the penultimate sentence, it says:
“However, HMPPS modelling (undertaken with PHE) has indicated the possibility of high numbers of deaths in custody and suggests in the region of 10 times the number that we would normally see, with c. 2,500-3,500, based on the reasonable worst-case scenario. Potentially half of those deaths may occur over three weeks at the height of the pandemic.”
Dr Arora, what I want to explore with you is whether this advice is appropriate to children as opposed to adults.
So, would you agree with me that it is not appropriate to children, because it is focused on adults in prison, who might have multi-morbidity, who are older, and who are at higher risk of Covid – of a serious health deterioration from Covid, as opposed to children, who don’t have those higher risks?
Dr Shona Arora: So I think it’s fair to say this focuses predominantly on the adult prisoner population but it also focuses on prisons as a particular setting, and the closed nature of that environment, and also the particular issues of dealing with outbreaks in a closed setting, which I think could be applicable, and I think bearing in mind when this was written, at the very early stages of the pandemic, at that time, we also didn’t really know how severe it was in children and young people versus older people.
So I think it is more focused on adults. There’s no denying that.
And – but I think it’s also worth bearing in mind that it’s not just the population; it’s the setting that contributes to this. And we also had, at that point, very limited knowledge about how Covid-19 was going to affect different age groups.
Counsel Inquiry: I’m going to move on now to the guidance which was in place later on in the pandemic, so 21 July 2021, and this is the – preventing and controlling outbreaks of Covid-19 in prisons and places of detention. This is guidance which is issued by both the MoJ and also Public Health England. It’s known as the PPD Guidance.
So this is quite a late iteration on –
Dr Shona Arora: Yeah.
Counsel Inquiry: – more than a year from the onset of the pandemic.
And we can see – we don’t need to move to it, but on page 3 it clarifies that it applies to young offender institutions, secure training centres and secure children’s homes, and on page – thank you, so quick – on page 10 it says that:
“… all new and transferred prisoners or detainees should be isolated in a Reverse Cohorting Unit … for up to 14 days and tested for COVID-19 …”
And it’s clear that – we don’t need to go to it, but on page 12 it makes clear that those arrangements applied equally to young offenders institutions and secure training centres.
And this reverse cohorting meant, in practice, that children held in young offenders institutions and secure training centres, when they returned to the prison from a court appointment, for example, or when they entered the prison for the first time, or if they were transferred there, that they would be held separately from other prisoners for 14 days and in some cases, as we’ll hear this afternoon, were not able to leave their cells, sometimes for days at a time, sometimes for only half an hour.
And what I want to ask is, this is some 15 months into the pandemic. By this stage, there were few restrictions in the community, and children, even clinically vulnerable children, had returned to school almost a year before. Was it appropriate at that stage to have this level of severe restriction on children in custody, bearing in mind it was known by that point that the risks to their health were very low?
Dr Shona Arora: So I can understand why basic infection prevention and control principles would still want to apply, and there were still outbreaks occurring in adult prisons. I think there was some associated more operational guidance that was provided, I think, by the Youth Offending Service and NHS England, to try to make it more specific to the settings where children and young people were being held.
I think, it’s fair to say, this is very focused on managing Covid-19, that was still quite a serious issues in prisons at the time for adults.
Counsel Inquiry: If I could just pause you there. There was specific guidance, but this, the PPD guidance, continued to apply –
Dr Shona Arora: Yes.
Counsel Inquiry: – and while there were still outbreaks in adult prisons, this guidance applied to young offenders institutions and secure training centres.
Dr Shona Arora: Mm.
Counsel Inquiry: So there could have been separate PPD guidance for children –
Dr Shona Arora: Mm.
Counsel Inquiry: – but there wasn’t. And my question is whether this guidance was appropriate to be applied in institutions that held children?
Dr Shona Arora: Again, I think it’s quite difficult to comment and I think you’d probably have to ask Dr O’Moore as to the rationale as to why. I think one of my reflections is, if I go back pre-Covid, Children and Young People’s Secure Estate was always included in how, in the multi-agency approach to outbreak management, and I think there has probably been a bit of a continuation of “That’s what we did before so we’ll carry on doing that”. Covid was, obviously, different from, you know, outbreaks do happen but they’re usually bit more limited and I think one of the learnings that we’ve really taken away from this is that we need to understand more about the diversity, both of the population and the nature of the settings within the Children and Young People Secure Estate, and the reasons why children are there.
So I think the Ofsted points were – actually, have been helpful to us in creating a slightly different paradigm about how we go forward.
Counsel Inquiry: Okay, well, just before we end, then, I’ll just show you the Ofsted criticism as it’s set out, so can you tell us if there’s anything you don’t agree with. That’s INQ000588111, paragraphs 722 of the statement and 724.
It says:
“… one of the most significant problems faced by [young offenders institutions and children’s homes and training centres] was that public health guidance was focused on adult settings, rather than children. This was regularly raised … in ‘joint partnership’ meetings … The response was not consistent and [the] … guidance contained many mixed messages. [It] exhibited a lack of understanding of the operation and needs of children’s secure settings …”
And I think you would agree with that? You said that was a learning point for you, that it was necessary to have that greater understanding?
If we can just scroll down –
Lady Hallett: Sorry, was that a “yes”?
Dr Shona Arora: So, you asked me if I disagree with this particular statement, and I – I do – it’s slightly more nuanced than that. If you don’t mind putting it –
Ms Pottle: No, please, let’s go back up.
Dr Shona Arora: I think – the joint partnership is really important, and it’s something that’s – we try and work with our partners, because what we are experts at in Public Health England and UKHSA is infectious disease and environmental threats and how they might play out at general population level. We do rely on working really closely with other government departments and sector specialists to understand how to operationalise good infection control and prevention evidence into their setting and we cannot possibly understand all the nuances and how things are working. And the partnership is between NHS England, PHE at the time, now UKHSA, MoJ, HMPPS and DfE.
So I think – I think there’s a question here about what guidance can really achieve and then how we need to work with other government departments nationally, but also locally. Every public sector organisation – well, a whole range of organisations have access to our regional health protection teams, who will give specific advice based on anything going on at the time. So I think I can see that – as I said, I think it has made us really sit back and think about this, but I think it’s – it’s partly how we work in partnership and get the right information and intelligence, and work together to make sure that we have guidance that both really does do what it’s there to do and protect people from infectious disease, but, also, we’re making appropriate interventions to balance any risks that implementation might produce.
And although this is an account of issues being raised with PHE, from our records, I’ve not really been able to find an audit trail so it’s a little bit difficult for me to particularly answer that one, one way or another. But I appreciate things were moving fast and – rapidly. But I know the Health and Justice team were present at a lot of outbreak meetings and really keen to work in partnership.
Ms Pottle: I see. Thank you very much, Dr Arora.
That’s the end of my questions for you. There are some additional questions for you from some Core Participants.
Lady Hallett: There are. Ms Iengar goes first, and she is just there.
Questions From Ms Iengar
Ms Iengar: Dr Arora, I ask questions on behalf of Long Covid Kids and Long Covid Kids Scotland.
I have some short questions on PHE and UKHSA’s response to Long Covid. You told us this morning that PHE, along with the rest of the scientific community, became aware of Long Covid in children from May 2020 and of course you’ve explained that PHE provided scientific advice to D of E. When did PHE share that understanding with D of E?
Dr Shona Arora: I’m afraid I’d have to go back and look at the detailed timeline for that.
Ms Iengar: Would you be able to give us a sort of time period whether that was in late 2020 or whether it was at some point in 2021? I ask because your statement doesn’t touch on Long Covid so we’re trying to fill some knowledge holes, if I might put it that way.
Dr Shona Arora: I would – partly, as I say, because I’m relying on sort of the evidence and paper trail myself, I would struggle to kind of answer that without being able to factually check that.
Ms Iengar: But – so if we could speak in broader terms in that sense, the Inquiry has heard evidence of teachers frequently dismissing pupils’ symptoms, pupils’ Long Covid symptoms, out of a lack of understanding of the disease, not knowing that the disease existed. Would you agree that teachers, parents and schools would be helped by timely, basic information that Long Covid exists in children, that it causes debilitating disabling symptoms, and that that inevitably has an impact on educational attainment and educational attendance?
Dr Shona Arora: And I think that was certainly an issue in 2021, wasn’t it, about what information should be provided and could be provided. I think, again, it – I’m always in favour of sharing as much as we know about something with the public, even if it’s to say, “This is what we don’t know”, as well, but I think they are – it was clearly a complex area throughout – 2020, it was just beginning to emerge, but 2021, even then I think there were a lot of complexities around it, but I do, as a principle, think that it is always good to share as much as you possibly can with professionals and the public.
Ms Iengar: You said it’s a complex area but the question is really a very simple one on whether the existence of Long Covid, something that PHE was aware of from May 2020, should have been shared in a timely way with teachers and schools so that that dismissal of pupils didn’t endure, so the pupils could access education. Would you agree with that principle?
Dr Shona Arora: So I think there was general understanding, again across DHSC, CMOs, and widely, that Long Covid was a phenomenon, but I think it’s the level of detail of what we understand about it, how you diagnosis it specifically enough, and what you should – what you can then respond to and do about that.
I think, for me, there’s something about any child or young person who was experiencing difficulties in being at school or returning to school, whether it’s Long Covid or anything else, needs to be supported appropriately. But I think there was some understanding of the possibilities of Long Covid at the time, but even in PHE, we didn’t have – we might have been aware of it but we really did not have very good understanding of it even in 2021, and even today, I think it’s still a complex area to define, diagnose, and then decide what you need to do about it. But certainly, I think there was awareness at the time that it could be an explanation.
Ms Iengar: You’ve said that it’s a complex area and more needs to be done. What is UKHSA doing to build that evidence base on paediatric Long Covid now, five years after the onset of the virus?
Dr Shona Arora: So UKHSA, at this stage I think a lot of this now is about understanding the more clinical nature of the illness, and also, what interventions can be put in place to assist recovery, to help identify whether there’s groups of children and young people who may be more prone to longer time periods of suffering. And a lot of that is now much more in the realm of what I would call more clinical research and academic research, and with the NHS.
We’re obviously keen to continue as an organisation to review the evidence. We supported WHO in helping to come up with a case definition because you need a case definition to do research, as well.
Ms Iengar: Which we now have.
Dr Shona Arora: Yes.
Ms Iengar: But is UKHSA currently doing anything on paediatric Long Covid? So aside from the clinicians, aside from NHSE?
Dr Shona Arora: Not – I would need to go back and confirm that but I’m not aware that we’re doing any active research. But we will be reviewing the evidence base regularly, because obviously it is part of our understanding of the longer-term consequences of Covid and its impact on population health.
Ms Iengar: And my final question, which is one that looks forward, you’ve said in your witness statement that it’s critical to have good data to inform advice, to have evidence-based data to develop guidance and effective symptoms of surveillance. The UK, in relation to paediatric Long Covid, is flying blind in relation to the surveillance and monitoring of Long Covid in children and young people. There’s no national monitoring of prevalence or the impact. Would you agree that it would be helpful if DfE required schools to use specific codes to monitor Long Covid absences, that that might assist policymaking, for example?
Dr Shona Arora: Good data collection and granular data collection is always helpful, so I think it’s an area to explore. But also, again, through the NHS. Now that we have a case definition and codes, I think quite often a lot of research will be based on what’s picked up, both through primary care and hospital coding as well.
Ms Iengar: Dr Arora, thank you.
Thank you, my Lady.
Lady Hallett: Thank you.
Ms Peacock, who is down the end there.
Questions From Ms Peacock
Ms Peacock: Thank you, my Lady.
Good morning, I ask questions on behalf of the Trades Union Congress. The topic is air filtration devices in schools, which you’ve already addressed to some extent in your evidence.
Taking into account the lack of mechanical ventilation in many school buildings and the practical difficulties faced by schools in terms of improving manual ventilation, such as windows which do not open, thermal comfort issues, did the provision of air-cleaning devices in schools, mainly taking place in 2022 and 2023, come too late?
Dr Shona Arora: So, again, this links back to our understanding of the evidence base, and understanding how effective air-cleaning devices could be in those settings, what the constraints might be, whether some devices were better than others, how many devices you might need in a given classroom, and any consequences of those devices that might also adversely impact, such as noise or safety issues with young children around.
So I think what we’ve tried to present is that the evidence through the pandemic has provided us with an opportunity to improve the evidence base, but certainly it’s something – and so it’s something that we can certainly build on for the future.
Ms Peacock: On that point, and just by way of follow-up, your statement says that:
“Since ventilation and filtration are generally accepted to be effective interventions to reduce the transmission of respiratory infections in all indoor spaces, this evidence is equally relevant to school settings.”
And just for the record, that’s at paragraph 5.16.
On reflection, couldn’t the guidance have reflected that point of general principle from an earlier stage in the pandemic, given it was a novel pandemic, quickly evolving, and perfect evidence of interventions in schools, as you’ve outlined today, is very difficult, if not impossible, to obtain?
Dr Shona Arora: So I think this links back to what was understood and the approach taken at the start of the pandemic, when very little was known about SARS-CoV-2, and the earlier hypotheses about method of spread, if you like, was more around droplets and fomite spread, and it was only as, I think, it became obvious that aerosol had a bigger role than had first been identified that the issues around ventilation then became more salient.
Ms Peacock: Given, though, that aerosol transmission was recognised perhaps in 2020, was not that then lag in these devices not reaching schools until 2022 and 2023 not quite significant?
Dr Shona Arora: I mean, again, we don’t have a hugely strong evidence base for saying, you know: this is absolutely going to make a huge impact and we need to do this really early and it’s going to make a big difference to the risk here.
So I think there’s also some logistics, and that logistics and operational side is not really for UKHSA to comment on. But clearly, I think, for me, it’s more about what we do to make all our public buildings and schools, sort of, more resilient to, sort of, external threats, whether that’s infectious disease or climate change challenges.
Ms Peacock: I think that’s my time.
Thank you.
Lady Hallett: Thank you, Ms Peacock.
Mr Douglas, who is just there.
Mr Wagner: I’m afraid to say it’s me.
Lady Hallett: Oh, Mr Wagner, I’m so sorry.
Questions From Mr Wagner KC
Mr Wagner: No, it’s fine. It’s a disappointment for everyone.
Good morning, my name is Adam Wagner and I act on behalf of Clinically Vulnerable Families.
I want to ask you first, Dr Arora, about the DfE’s system of controls which you referred to in your statement, and I want to ask you about first – sorry the guidance in July 2020.
It is at INQ000648028, please.
Now, you just referred to it with Ms Peacock, and you said earlier in your evidence that if you go back to the start of the pandemic, what we knew about the virus at the time, there was a stronger focus on the droplet spread and less so on air – aerosol spread, and therefore a strong focus on the measures you would normally apply in that case.
Just going to page 6 of this document, please – I’m sorry, page 5.
And you can see there – if we can just get that box on the second half of the page that says “System of controls”.
I’m sure you’re familiar with these, but you can see there, these are the prevention actions which the school must take, so the mandatory actions.
It says there:
“1) minimise contact with individuals who are unwell …
“2) clean hands thoroughly …
“3) ensure good respiratory hygiene by promoting the ‘catch it, bin it, kill it’ approach
“4) introduce enhanced cleaning, including cleaning frequently touched surfaces often, using standard products such as detergents and bleach.
“5) minimise contact between individuals and maintain social distancing …
“6) where necessary, wear appropriate … (PPE).”
So those are the mandatory controls.
Would you accept that in July 2020 those – that system of controls was unlikely to be – have significant effect against an airborne virus like Covid-19?
Dr Shona Arora: So, obviously, at the time, that was based on the evidence available at the time. Some of that would have had some impact on an airborne virus and I wouldn’t say we wouldn’t do any of those, even if it was an airborne virus. In fact, we would do them as well, as part of that package of interventions.
Mr Wagner KC: But they wouldn’t be what – those measures aren’t the measures you would describe for an air – if you’d thought the virus was airborne? You’d have other measures as well?
Dr Shona Arora: I think quite – yes, and I think that appeared as the guidance evolved, and we saw different measures being promoted and brought into guidance.
Mr Wagner KC: Yes. But looking back, and in retrospect, those measures were insufficient for an airborne virus?
Dr Shona Arora: I think they weren’t completely effective, but I think it’s always going to be hard to be completely effective, but yes, I think there could be other measures under consideration, if your primary focus is aerosol.
Mr Wagner KC: Sorry. Obviously, it’s always going to be hard to be completely effective but isn’t that a bit of a cop out? Isn’t it the reality that if you had known, if we had known there was an airborne virus, those measures definitely wouldn’t have been sufficient to control it?
Dr Shona Arora: I think, if we had known, we obviously would have been thinking about what else we knew about transmission, and there was a lot of work going on at the time to try and establish how it did spread to see what else we should be considering.
Mr Wagner KC: I want to ask you now, please, about reopening schools in March 2021. And at paragraph 3.72 of your statement you summarise the analysis that supported that reopening, and that included testing and isolation measures implemented to detect Covid-positive students.
And at that point the isolation period for children was reduced to three days. Do you agree that by reducing that isolation period as well as restricting testing unless advised by a healthcare professional, that meant that infectious children were likely to be returning to classrooms?
Dr Shona Arora: I think by then we also knew much more about the infectious period, and viral shedding, and so again, I think it’s a judgement here, about balance of risk versus benefit, and minimising school absence whilst, at the same time, taking adequate precautions that reduce the level of risk of further infections and transmission. So again, that would have been based on the best evidence available at the time.
Mr Wagner KC: So it’s always going to be – balancing risk is always going to be important but don’t you agree that by reducing the period to three days and by reducing the need for testing, you’re going to be making it more likely that infectious children are going to be in the classrooms?
Dr Shona Arora: I think the other thing to bear in mind is there was the higher levels of population immunity. We were beginning the vaccines programme, as well, so I think there are other factors that would have influenced why it felt reasonable to move to a less burdensome testing regime, and reducing the period for isolation.
Mr Wagner KC: Sorry, if I wasn’t clear, that wasn’t the question I asked. I asked, do you agree that that reduction in time period and the reduction in testing would make it more likely infectious children would be in the classroom?
Dr Shona Arora: I mean, I can’t really comment on that because I haven’t seen the detailed data and evidence that led to that conclusion, but the process would have been that that would have been based on the data and evidence available at the time, and gone through proper processes and scrutiny.
Mr Wagner KC: And was any assessment made of the disproportionate impact that that shortened isolation period and restricted testing would have on clinically vulnerable children and children who had clinically vulnerable family members?
Dr Shona Arora: I’m not aware of any specific assessment made, if anything had been picked up, for example, through presentations at hospital, I think that would have been detected through data and concerns provided through the NHS.
Mr Wagner: Thank you, Dr Arora.
Lady Hallett: Thank you, Mr Wagner.
I’ve just checked, that completes the questions for you today and also the demands that the Inquiry has been making upon the UKHSA.
Please – thank you personally for all you’ve done to try and help us today, but thank your colleagues, too, for all the help they’ve provided over the course of the inquiry.
The Witness: Thank you, my Lady.
Lady Hallett: Thank you.
Right, is it Mr Lee now?
Mr Lee: My Lady may I please call Ms Carolyne Willow.
Lady Hallett: Thank you.
Ms Carolyne Willow
MS CAROLYNE WILLOW (affirmed).
Lady Hallett: I hope we haven’t kept you waiting. I think you’ve been following proceedings anyway.
Questions From Counsel to the Inquiry
Mr Lee: Thank you, Ms Willow, you have provided a witness statement to this inquiry dated 11 August 2025, and the reference we have for that is INQ000588071.
Can you confirm, please, that the contents of that statement are true to the best of your knowledge and belief?
Ms Carolyne Willow: That’s correct.
Counsel Inquiry: Ms Willow, to start with, Article 39 and your professional background. You explain in your witness statement that Article 39 is a small independent charity which fights for the rights of children living in state- and privately-run institutions in England. You founded Article 39 in 2015, and served as its director from that time up until 2024.
However, prior to founding Article 39, you had a career in social work which started in 1988; is that correct?
Ms Carolyne Willow: That’s correct.
Counsel Inquiry: You became a children’s rights officer for children in care, and care leavers in the early 1990s, and you’ve held specialist posts at the National Children’s Bureau and you led the Children’s Rights Alliance for England between 2020 and 2012? And finally, in addition to that experience, you’ve served on many different advisory groups that had a specific focus on children and their care.
Would that be a fair reflection of your experience?
Ms Carolyne Willow: That’s fair.
Counsel Inquiry: Ms Willow, can you help us with how you define state- and privately-run institutions? What type of institutions would that include?
Ms Carolyne Willow: They are institutions where children live in group-based settings, so they’re not in a family environment, they include children’s homes, supported accommodation for children in care aged 16 and 17, mental health units, and prisons.
Counsel Inquiry: And Ms Willow, prior to the pandemic, just to touch upon the day-to-day and the practical workings of Article 39, it’s right, isn’t it, that Article 39 would raise awareness of the rights, the views and the experiences of children, you would provide legal education and tailored advice to independent advocates for children and young people, you would run national campaigns and you, where you deem necessary, would pursue strategic litigation, that challenge what you would define as serious and/or systematic children’s rights breaches; is that right?
Ms Carolyne Willow: That’s correct.
Counsel Inquiry: Did the pandemic have any impact on the delivery or the focus of Article 39’s work?
Ms Carolyne Willow: We continued all of that work, and if I may say that the name of the charity comes from Article 39 of the United Nations Convention on the Rights of the Child, which grants children who have been abused, chronically neglected or exploited or suffered other rights violations, the right to recover in environments where their health, self-respect and dignity are nurtured, and that’s a really important starting point for the charity, because the whole ethos of the charity is children’s recovery. Children being known, understood, their perspective, their perception of their needs and what will make life better for them must prevail.
Counsel Inquiry: And you say, Ms Willow, in your statement, that Article 39 has a rare insight into the challenges facing looked-after children across the country, as communicated by them.
Can you help us with how, practically, this information gets from them to you, taking into consideration that many of these children live in secure institutions?
Ms Carolyne Willow: So, a core part of the charity, as you’ve said, is emboldening, informing, equipping, independent advocates who stand right next to the child, whether they live in a children’s home, a prison or mental health inpatient unit, to understand, to know, and to be able to apply the law and the rights of that child in that given situation. And the uniqueness of independent advocates is that they are there for the child and no one else.
We were called children’s rights officers back in the day, which is how I got into children’s rights, and all of our work with advocates is working on what children and young people have brought, and expressed and shared with their advocates. So we have a direct route about the concerns and the experiences and views of children.
Counsel Inquiry: Ms Willow, would that include independent advocates going into secure institutions, speaking to children maybe over the phone, or would it be a variety of different ways you would actually communicate with those children?
Ms Carolyne Willow: Yes, it does. Being a small children’s rights charity and very visibly there for children also means that we regularly hear from parents, from carers, from loved ones, including of children in prison, who tell us what life is like for children. And we also run groups and activities and events for children and young people.
Counsel Inquiry: Ms Willow, the Inquiry has heard evidence from Mr Charlie Taylor, His Majesty’s Chief Inspector of Prisons through England and Wales, and how the inspectorate gains that information from a different perspective. He summarised that at times children were spending up to 23.5 hours in their cells, face-to-face education stopped and was replaced with worksheets and work packs, and prison visits were suspended, meaning that children were going many months without face-to-face contact with their families and friends.
Were these findings consistent with what you were hearing on the ground of parents, carers, and from the children inside these institutions?
Ms Carolyne Willow: Absolutely consistent, and the description of the injury, the psychological and emotional injury to children, is also what we were hearing and aware of. And of course, when you’ve been in social work and children’s rights for an awful long time, previous research, investigations, inquiries, proclamations as to how things will be different for children in the future, they’re always there. They’re always in your head whenever you read or hear from children, read about children or hear directly from them.
Counsel Inquiry: Ms Willow, on the topic of oversight, you’ve mentioned how you have an independent children’s advocate network. The Inquiry has heard evidence from Mr Charlie Taylor. You explain in your witness statement that Article 39 feared the loss of external oversight for children.
The Inquiry knows that His Majesty’s Inspectorate of Prisons suspended inspections of young offender institutions on 17 March 2020 and introduced short scrutiny visits from April 2020. And in a similar fashion, Ofsted, who inspect – or who lead inspections of secure training centres, also suspended inspections in March 2020 but didn’t introduce assurance visits until September 2020.
The Inquiry heard evidence that the main reason for that was on the back of public health advice. And of course, there’s a balance between inspectorates getting into prisons but inspectorates trying to stop bringing Covid-19 into prisons where children are, so it – in one sense it could be counterproductive.
Where does that balance lie? And is there any solution as to how, in the event of a future pandemic, the inspectorates can function whilst maintaining the safety of children in prison and complying with future public health advice?
Ms Carolyne Willow: The public health advice needs to take the whole child, needs to take in their physical, their psychological, their emotional health, and to seriously consider the impact of advice and decision making on children as whole people. And the literature, the body of knowledge that is known about the risks for children of closed institutions goes all the way, my knowledge of inquiries, goes all the way back to the 1960s.
And –
Counsel Inquiry: Ms Willow, I’m sorry to pause you there. I think the point you’re making is that independent inspections are still needed in the event of a pandemic. Can you help us with practically, if inspectorates can’t get into the particular institutions, how can people achieve that level of oversight?
Ms Carolyne Willow: Well, one aspect of the prisons inspectorate process is surveys of children, which they have been doing for over 20 years. So of course that can continue. To be able to have, when they are prevented, due to lack of knowledge, the initial weeks of panic and having to work out responding to the virus, they can connect into the prisons through remote means and also, critically, to have contact with children’s loved ones, because children’s loved ones, parents, carers and others that are by the child, will know about the child, the individual child. They will know what they were already suffering and dealing with before, and they would be able to pass that to the inspectors.
However, it has to be an imperative that the inspectors get in there, and that has to be the headline task for those giving advice to government, because of the knowledge of the risk of closed institutions developing punitive, coercive, cultures. There is decades of evidence of the risk and the injury caused to children when there isn’t an external oversight.
And it’s not just that an external oversight exists, it’s also that it’s seen to exist.
Counsel Inquiry: Ms Willow, just so I’m clear before we move on to the next topic, is your evidence that the balance between managing the risk of potentially bringing the virus into the prisons, but then not – inspectorates not getting into the prisons because of the potential risk of regimes and what’s happening, is your evidence that that balance would fall in favour of inspectorates getting into prisons?
Ms Carolyne Willow: Absolutely. Children have taken their own lives because of abuse in prisons. Children have suffered horrendously from self-harm because of abuse in prisons, and that information is known, and that has to be part of the reckoning as to what are we going to do in this scenario to make sure that we can do our absolute best to prevent harms to children?
Counsel Inquiry: Ms Willow, remaining in the pandemic times of the prison system and the youth justice system, I want to now ask you about the process by which the changes were made to the regimes. The Inquiry has also heard evidence that the temporary regime restrictions were applied across the adult and the youth estate from 24 March 2020, but we then know that amendments were made in May and July of that year to the Prison and Young Offender Institution Rules 2000, and the Secure Training Centre Rules 1998, and the purpose of that was to reflect in legislation the current operational situation of the temporary restricted regime that had already been implemented, as we know, within the different children’s prisons.
And I want to ask you about your views as to the process those changes were made, because you explain in your statement that in July 2020, Article 39 made a Freedom of Information Request for the child rights and equality impact assessments undertaken before the government made the amendments.
Could you outline your headline concerns to as why you wanted that and why you felt it was important?
Ms Carolyne Willow: These were very substantial and serious changes to legal protections for extremely vulnerable children. Over half of children who are in prison and were in prison in March 2020 had been in care. A third were disabled. And many had health conditions and needs that required the best of protection and care during the pandemic.
So the context is that these are highly vulnerable children. If you are going to take away legal protections that are there because we know children can just about survive prison by seeing their mum or their grandma or their dad, that children can just about survive prison by having something to do, and not being stuck in a cell the size of a small bathroom for 20, 22, 23 hours a day.
Then, if you are going to take that away, then you have to follow a robust, rigorous process. Otherwise all the child protection legislation we have in place, all of the procedures, all of the systems we have in place, count for very little. And that Freedom of Information Request was systematically going through: did you seek advice from the Children’s Commissioner? Did you carry out a children’s rights impact assessment? Did you inform children? Did you inform their parents and loved ones? And so on.
And that was to hold the Ministry of Justice to account. This is what you are meant to be doing if what you say in paper – and there’s an awful lot of paper surrounding child prisons – is correct, and is to be believed.
Counsel Inquiry: Ms Willow, I was going to move on to ask you a question that what the Ministry of Justice or the government may say is that, given the situation they found themselves to be in, which we’ll hear more about this afternoon, that irrespective of a child rights impact assessment, the amendments would have needed to change in any event. And I was going to ask you, well, what purpose would the child rights impact assessment have served, but is your evidence that it was simply to hold the government to account to make sure they were considering impact?
Ms Carolyne Willow: Much more than that.
Counsel Inquiry: Could you expand on that, please?
Ms Carolyne Willow: If those processes had been followed, hopefully they would get a series of responses which in technicolour remind them that these are highly vulnerable children and you cannot amend the law which will legitimise treatment and arrangements that will cause great injury, psychological, emotional, physical injury to children.
Counsel Inquiry: Ms Willow, I now want to move on to government understanding.
And if we can have on screen, please, INQ000588042.
This is a witness statement from Lucy Frazer King’s Counsel, the former Minister of State for Justice responsible for prisons and probation. We can see at paragraph 271 that this statement says that:
“As throughout the pandemic, operational decisions were taken which considered the needs of children and the particular impact of restrictions on them.”
Did you feel, from what you know and what you were hearing on the ground, that the government did in fact give sufficient consideration and weight to children’s rights and decision making during the pandemic?
Ms Carolyne Willow: There was no evidence of that.
Counsel Inquiry: And if we focus specifically on the pandemic, and what was happening in prisons during the pandemic, what was Article 39 doing to try to help to promote and protect the rights of children? You’ve given us one example where you were writing to the Ministry of Justice asking for impact assessments. Was there anything else you were doing with government to say this has to change?
Ms Carolyne Willow: We coordinated a joint letter which was sent to government on 18 March 2020 to call for children who could be safely released into the community for that to happen.
Counsel Inquiry: Ms Willow, just on that point, I think it’s right, isn’t it, that whilst that process would have started in March, during the pandemic, and I’ll be corrected if I’m wrong, that actually no children were released under the early release provisions?
Can you just provide us with your opinion as to why that might have been the case, when we know many, many adults were released.
Ms Carolyne Willow: That’s correct. Fundamentally, I think it comes down to the low status and the low priority given to children, the narrative that children were not at risk of dying from the virus, rather than looking at the whole child and what the virus could do to them in terms of how prisons would then make children spend prolonged periods in their cells, stop education, stop the family contact. So there wasn’t a full understanding of children and their needs.
And the calls for the safe release of children continued throughout, including from many other organisations and bodies. I have to say that I haven’t reviewed evidence and – and disclosure that I hadn’t previously seen, to read, for example, that children who didn’t have a home, children who were in care, couldn’t be released to a bed and breakfast or released to homelessness. Well, that’s not good enough. If there are children in care, they should have homes to go to.
Counsel Inquiry: Ms Willow, we’re going to cover that topic later this afternoon, but just on the point of the government understanding the needs of children, if we can turn, please, to His Majesty’s Prison and Probation Service operational guidance, we know that, following the restrictions on 24 March 2020, that around three weeks later the Ministry of Justice and HMPPS issued, as we can see on screen, amended guidance dated 15 April 2020.
And this guidance sets outs how prisons would ensure that inmates had access to the essential services, including meals, showers, telephone contact with loved ones, access to legal advisers, and access to health services.
This is a 42-page document that we’ve simply not got time to go through today but we know that there’s around two pages that are dedicated specifically to the youth custody estate.
If we could move, please, to the second document INQ000575485.
We can see that this is another piece of key guidance, this time the COVID-19: National Framework for Prisons Regimes, published in June 2020.
And it’s correct, isn’t it, that it was this document that provided a conditional roadmap to how prisons would ease out of the restrictions. And some may suggest that this document also provides limited reference to children and the children’s secure estate.
But to be fair and to be clear, that this isn’t all of the guidance, but if I understand it right you did read the guidance at the time and you’ve read it subsequently?
Ms Carolyne Willow: Correct.
Counsel Inquiry: It’s been suggested, Ms Willow – and we’ve heard the Ofcom criticism – sorry, the Ofsted criticism about the guidance this morning, but in your overall view, did the guidance issued during the pandemic by HMPPS or the Ministry of Justice recognise and promote the distinct needs of children, or was it the case, as suggested by others, that adult guidance was simply shoe-horned into the youth estate?
Ms Carolyne Willow: The guidance is completely inadequate for children. So the answer is: no, children are invisible in these documents, apart from the words “Youth Custody Service” and – and “children”. There’s no tangible, practical, standalone – and why are children in the same documents in any case, when there is meant to be a separate secure estate for children?
Counsel Inquiry: Ms Willow, if we can now turn to Secure Children’s Homes, please.
If we can have on screen INQ000588111.
We can see at paragraph 724 – this is a witness statement from Mr Matthew Coffey, provided on behalf of Ofsted, and we can see in his statement that he says that:
“Children in Secure Children’s Homes received a much better offer. Although the initial period of lockdown was crisis-management, in a very short time [Secure Children’s Homes] generally got to grips with the restriction requirements. They applied a child-centred approach resulting in children for the most part having a normal routine, including attending education.”
Is this something that Article 39 recognised during the pandemic from speaking to children?
Ms Carolyne Willow: Absolutely. Secure Children’s Homes are part of local authority children’s services. They follow the same law, standards, regulations, as children’s homes in the community. They are child establishments. They are staffed by multi-disciplinary teams that are there for children. They are, in every respect possible, different from prisons.
And just because we say “child prisons”, because it has “child” in front of it, make no mistake, child prisons are prisons. They are adapted in some ways, but fundamentally, the child’s experience is the same as an adult’s experience.
Counsel Inquiry: Ms Willow, if we could now turn to residential children’s homes generally. Can you help us, please, with how many people in March – sorry, how many children in March 2020 were living in children’s homes?
Ms Carolyne Willow: Just under 7,000 children.
Counsel Inquiry: And we will return to residential children’s homes but I want now to move on to the amendments to social care regulations, to ask about the context behind those before we return to the particular impact those amendments had on residential children’s homes.
We know that one of the main changes to the provision of social care was introduced via the Adoption and Children (Coronavirus) (Amendment) Regulations 2020. At a very high level, can you please just explain what the government was proposing to change in March and April 2020?
Ms Carolyne Willow: Well, in April 2020 it actually did change, radically change, the children’s statutory scheme. So overnight, between 23 and 24 April 2020, over a hundred changes were made to ten separate statutory instruments, and of those over a hundred changes, 65 safeguards for children were deleted or diluted.
Counsel Inquiry: Did any of the changes increase legal protections, or was it simply they were diluted?
Ms Carolyne Willow: There was not a single increase. And if I may share some examples of the changes, the deletions and the dilutions?
Counsel Inquiry: Ms Willow, we’re going to come back on to the specifics but I just want to ask you before we get there, please, that the Inquiry heard from Baroness Anne Longfield, as you know, the former Children’s Commissioner for England, and she described feeling horrified about the changes when she found out about them on 16 April 2020, and the Inquiry has already heard about the consultation and the background to that with Baroness Longfield, but I want to ask when you first became aware of the proposed changes?
Ms Carolyne Willow: I became aware when they were published and somebody emailed me. We were expecting a statutory instrument relating to children’s homes, we were not expecting what was published. And so then I sat at my desk for several hours until after 10 pm that evening working out exactly what the statutory instrument did and took away from children.
Counsel Inquiry: What was your understanding as to why the government was seeking those changes, which we know changes were –
Ms Carolyne Willow: The explanatory memorandum which was published at the same time depicted these changes as changes to administrative burdens, to procedural matters, and that this was to ensure that children’s social care could continue to operate, so that core safeguarding could continue to operate.
Now, that was a fallacy because the changes that were included in the statutory instrument included core, substantial safeguards for children. They are and were safeguarding duties.
So, for example, social worker visits. I started my career as a local authority social worker, visiting children in care. I know how critical they are to children’s protection, wellbeing, sense of belonging, and being wanted. And also, what you can see when you go and visit the child. Now, not only did the regulations define a visit as having a phone call or a video call, it also took away the very clear statutory requirement to visit a child at minimum every six weeks.
So here we had the Department for Education saying children in care, the most vulnerable children in society, “Local authorities, you do not have to even call them once every six weeks”, because that was taken away from the statutory scheme.
Another example. The temporary approval of what was in law before of connected people to children in care. So that would be, say, a teacher or a grandma or an auntie or an uncle. There was provision already in the law that a full assessment of those people didn’t have to happen for 16 weeks, if the local authority was satisfied that, broadly speaking, it was suitable. For connected people, it’s obvious why. It would be people that the child already knew, that already knew the child.
So another of the changes was to extend that to 24 weeks and to say the connected person aspect does not apply. So this can be anyone. And there was already provision in the law to – for a nominated officer to increase that to another eight weeks. So here you had 32 weeks where a child could be placed with somebody that doesn’t know them, that they don’t know, for 32 weeks, and another removal was to dispense with the nominated officer’s approval if a child was sent out of their area.
Now, all of these safeguards are in law because things have gone wrong, and things are known to have gone wrong for children. That is why the out-of-area approval, for example, because social work knows that children who are sent out of area are much more vulnerable than children who are in their local authority.
Counsel Inquiry: Ms Willow, just on that point, the Inquiry heard that Baroness Longfield concluded in her evidence that there wasn’t an understanding about the level of risk to some children. Some children were living day-to-day. In your view, was there a disconnect between policymakers and what was actually happening on the ground?
Ms Carolyne Willow: I don’t believe they had any understanding, and actually the Court of Appeal and the High Court share that, maybe not in the same short assessment that I’m giving, as to the magnitude of the statutory scheme taken together and the individual safeguards. Remember the characterisation of these individual safeguards, and what the minister, Vicky Ford, was told in her briefing is that these are minor burdens, procedural.
Now, if you are a minister who has been in post for about a month and you get a briefing from civil servants that tell you these are minor, these are burdens, these are procedural, and “Minister, we have to do this in order to save children’s social care generally”, then unless you come with a whole load of experience of children in care, with a professional background, then you’re likely to give your approval, which of course she did.
Counsel Inquiry: Ms Willow, can you help us with this please: we know the amendment regulations came into force on 24 April 2020. Were they time limited until 25 September 2020?
Ms Carolyne Willow: They – that was what the statutory instrument said, but there had been government statements elsewhere that they may be used as a testing ground to see whether these minor burdens could be done without in the longer term. Also, it was tied to the Coronavirus Act. So it was very probable, from our perspective, and many other children’s rights advocates, that these changes could continue in the longer term.
Counsel Inquiry: And we know that Article 39 started legal proceedings to challenge the amendment regulations soon after they came into force.
Did you bring your concerns to the attention of the government before the legal action?
Ms Carolyne Willow: Well, the pre-action protocol sets that out, of course, the letter that goes to government. On the day the statutory instrument was published, our website set out in detail that evening the consequences for children of this statutory – of this change to the statutory scheme, and we also made any noise we could in the media.
Article 39 is a charity that is known by the Department for Education. They watch, and would have been well aware, even before that pre-action protocol letter, and it was published in the sector press also. And there was lots of social media coverage, including, of course, from the Association of Directors of Children’s Services, Local Government Association, the Network of Principal Social Workers, who confirmed that they were not aware of the full magnitude of what the Department for Education had pushed through.
Counsel Inquiry: And Ms Willow, we know that the government’s position, certainly at that time, was that the changes were needed because, as you’ve already alluded to, they were described as administrative burdens and minor changes. And you’ve also alluded to the fact of fears of staffing issues, and that the danger of the pandemic would have led, if the changes weren’t made, to children and their care almost being non-existent.
Is it your evidence that, in terms of the government’s balancing act between staffing issues and risk, the issue is that the government didn’t actually or properly understand the risk and the practical consequences of what the amendments were about to achieve?
Ms Carolyne Willow: They didn’t properly understand what they were doing. This also came after several years of other attempts by government, including through legislation, to “relax”, inverted commas, safeguards, and to give local authorities more “flexibility”, inverted commas.
So they didn’t understand the safeguards. They were in a mindset of deregulation that local authorities are overburdened – their words, not mine – overburdened with duties towards highly vulnerable children, and they needed to have leeway and freedom to change their practice.
So that was pre-Covid. From my perspective, that mindset carried over to the Covid times. Had there been a real understanding of the importance of social worker visits, as to the importance of statutory reviews, of children in care, as to the importance of having oversight when children or put into – babies, largely – put into fostering for adoption placements, as to the importance of having an independent monthly check in children’s homes, had they understood all of that – and actually, if they didn’t understand any of that, then they could have come to children’s rights organisations, who stand next to children, and ask us.
Counsel Inquiry: Ms Willow, I need to just cover two topics very quickly if I may, please, because we’re about to run out of time, but in terms of whether the changes were used, a statement has been provided by or on behalf of the Department for Education by Ms Frances Oram. And to summarise what it says in those statements, we can see at paragraph 21 that:
“DfE has not subsequently, specifically or distinctly measured the impact (if any of the regulations), partly because reported use of the exception was low.”
And at paragraph 4.9, again it reiterates the point that, after gathering regular feedback from a variety of sources, including local authorities, social workers, charities, Ofsted and other key partners, that the engagement with those stakeholders indicated that the amendments had not been widely used overall.
Just very briefly, was that your view?
Ms Carolyne Willow: Who knows? The statutory instrument itself placed a statutory duty on the Secretary of State for Education to review the effectiveness of the regulations. As far as I can see, from what has been published and released by the Department for Education, that the one-sided consultation that happened in the – producing the statutory instrument continued when they were seeking information as to their implementation.
And there is a fundamental fallacy at play if you look at some of the documentation from the Department for Education when they were sending out surveys to local authorities or ringing up their contacts in local authorities: are you using the flexibilities? So-called flexibilities.
Well, we did only have one version of the statutory instruments from 24 April 2020. It wasn’t that all of the ten statutory instruments that were previously in law were still there, and then we had all these amendments; the statutory instrument had fundamentally changed the statutory scheme for children.
So, asking local authorities, “Are you still with the old law?” betrays a lack of understanding. And of course, it’s self-reporting. This is requiring, expecting local authorities to report to central government that: yes, we’ve stopped having six-weekly telephone contacts with children in care, we’ve stopped reviewing their welfare, we’ve let people who are not connected to children look after them without a full assessment, we’ve stopped placement plans, which were very clear in law before.
You are expecting the local authority to say: we’ve done that, and could you tell the minister that this is the effect on children.
And of course, they were never asked, actually, the effect and impact on children. They were just asked, “Are you using the flexibilities or not?”
Counsel Inquiry: Ms Willow, final question.
Having time to reflect on what happened during the pandemic, what can be done to better protect the rights of children living in institutions and being part of decision making in the event of a future pandemic? Could you maybe simplify, clarify, or provide us with your headline points.
Ms Carolyne Willow: Two headline points. Firstly, we need a cabinet minister for children, a cabinet minister who has the status, and the department that is taken seriously across government, and which is the overall cabinet position for matters relating to children.
And secondly, in order to make sure that children are not put to the side, in order to make sure their needs, their perspectives, their rights are properly considered at all levels of government, and are taken seriously, we need the United Nations Convention on the Rights of the Child to be made part, fully part, of our domestic law.
And that is because we need a fundamental cultural shift across government, but also, children need the back-up, the legal back-up, of having enforceable rights and entitlements that cannot be just removed at a whim.
And if I may add a third, a statutory duty on government departments to consult and then to give weight to the statutory children’s rights body, which is the Children’s Commissioner for England.
Mr Lee: Ms Willow, thank you for that.
My Lady, those are my questions. Do you have any questions?
Lady Hallett: No, I don’t. Thank you very much indeed. I’m very grateful to you. You’re a very passionate and effective advocate. I think you’re trying to do Mr Twomey out of a job, and I see you were called to the Bar as well, so he’d better watch his step.
Anyway, thank you very much indeed for the help you’ve given and for the participation that Article 39 have had in the Inquiry. Thank you.
Very well, I shall return at 1.45.
(12.47 pm)
(The Short Adjournment)
(1.45 pm)
Lady Hallett: Ms Pottle.
Ms Pottle: My Lady, may I please call Lucy Frazer KC.
Ms Lucy KC
MS LUCY FRAZER KC (sworn).
Questions From Counsel to the Inquiry
Lady Hallett: Thank you very much for coming along to help us, Ms Frazer.
Ms Pottle: Can you please state your full name.
Ms Lucy KC: Lucy Claire Frazer.
Counsel Inquiry: Ms Frazer, thank you for providing a helpful witness statement to the Inquiry. You should have it in front of you, and it’s INQ000588042 for the Inquiry’s reference.
Before I begin with my questions about the children and young persons secure estate, I would just like to go through your professional background first.
You were elected as a Member of Parliament for South East Cambridgeshire in 2015; is that right?
Ms Lucy KC: That’s right, yes.
Counsel Inquiry: And you served as an MP until 2024?
Ms Lucy KC: I did.
Counsel Inquiry: From July of 2019 until March of 2021, you were a minister of state at the Ministry of Justice?
Ms Lucy KC: Yeah.
Counsel Inquiry: The Ministry of Justice at that point was led by the Secretary of State for Justice, who is also the Lord Chancellor, and who was at that point the Right Honourable Sir Robert Buckland King’s Counsel?
Ms Lucy KC: Yes.
Counsel Inquiry: Your ministerial portfolio was prisons and probation –
Ms Lucy KC: Yes.
Counsel Inquiry: – is that right? And you assisted the Lord Chancellor in his duties. He was accountable to Parliament for Her Majesty’s Prison and Probation Service –
Ms Lucy KC: That is right.
Counsel Inquiry: – is that right? Which we’ll refer to as HMPPS. He was also accountable to Parliament for policy of HMPPS and oversight?
Ms Lucy KC: Yes.
Counsel Inquiry: And you supported him in that role?
Ms Lucy KC: That’s correct.
Counsel Inquiry: Okay. You set out in your witness statement that your role was to support the Lord Chancellor in the decision and framework around the lockdown of prisons and the lifting of restrictions as the pandemic progressed; is that right?
Ms Lucy KC: Yes, that’s right. I was sort – in my witness – I was responsible to support him in his role, so far as it related to my portfolio. I tried in my witness statement to pick out the key things, so that was one of the key things.
Counsel Inquiry: Yes. So you supported him insofar as his role touched on your portfolio of prisons and probation?
Ms Lucy KC: Exactly.
Counsel Inquiry: Okay. And I think you also say in your statement that in the first months of the pandemic you were more involved than usual in operational matters in prisons; is that right?
Ms Lucy KC: Yes, in broad terms. I also say in my statement that I was not responsible for the operations of the estate. That was the responsibility of HMPPS. But inevitably over this period, I had a much closer relationship with HMPPS than I had done previously.
Counsel Inquiry: Yes.
And – sorry, I think the [draft] transcript, it says “operations of the state”, do you mean the –
Ms Lucy KC: The estate.
Counsel Inquiry: Estate, yes. That’s right.
Ms Lucy KC: Prison estate might be a better way of putting it.
Counsel Inquiry: So HMPPS was responsibility for the day-to-day running of the prisons estate?
Ms Lucy KC: Yes.
Counsel Inquiry: You and, ultimately, the Lord Chancellor had oversight over it?
Ms Lucy KC: Correct.
Counsel Inquiry: But in the immediate months after the pandemic, you had more involvement than usual because it was an exceptional time, I suppose?
Ms Lucy KC: Yes, I – during the course of the pandemic, at the beginning, I had a one-to-one daily meeting with the CEO of HMPPS, which was not what I had done prior to that.
Counsel Inquiry: No, okay. And finally, just on the question of your role, you also ensured that appropriate legislation was in place to respond to the pandemic, and, for example, you laid several statutory instruments before Parliament to facilitate, for example, the early release of prisoners and changes to the prison regime; is that correct?
Ms Lucy KC: That’s correct.
Counsel Inquiry: And we’ll go on to talk about those in detail later on. But before we get into the substance, I’d like to ask you, your responsibilities were, of course, not limited to the secure estate as regards children. Your responsibilities extended to the adult estate as well?
Ms Lucy KC: That’s correct.
Counsel Inquiry: And at the time of the pandemic, there were roughly 800 children in custody in England and Wales?
Ms Lucy KC: That’s right.
Counsel Inquiry: And the adult estate had roughly 80,000 adults?
Ms Lucy KC: That’s correct.
Counsel Inquiry: So, children made up roughly 1% of the entire population of detainees that you were – had responsibility for?
Ms Lucy KC: That’s statistically correct.
Counsel Inquiry: Okay.
There are three types of institutions that hold children in England and Wales. There are youth offender institutes; is that right? Institutions, rather.
Ms Lucy KC: Yeah, yeah.
Counsel Inquiry: And they’re for offenders aged 15 to 21. They are larger sites and have lower staff-to-child ratios – pardon me – have higher staff-to-child ratios than secure training centres and secure children’s homes?
Ms Lucy KC: Just repeat that.
Counsel Inquiry: Sorry.
They hold children 15 to 21?
Ms Lucy KC: Yeah.
Counsel Inquiry: They are larger sites?
Ms Lucy KC: Yeah.
Counsel Inquiry: And of the three, there are fewer staff per child?
Ms Lucy KC: Yes, that’s right.
Counsel Inquiry: Yeah, okay. And secure training centres hold children under the age of 15 who have been sentenced to a detention and training order; is that right?
Ms Lucy KC: That’s correct.
Counsel Inquiry: Okay. And during the specified period, there were two in operation, Oakhill Secure Training Centre, and Rainsbrook Secure Training Centre?
Ms Lucy KC: Yes, that’s right.
Counsel Inquiry: Okay. Secure Children’s Homes are smaller sites still, and they’re designed to accommodate children and young people between the ages of 10 and 17. They can accommodate children on welfare or justice grounds, and they’re operated by local authorities.
Ms Lucy KC: Correct.
Counsel Inquiry: Okay. So now that we have a picture of the secure estate –
Ms Lucy KC: Could I add to that? Because when you said the adult estate, I would distinguish between the adult male estate and the adult female estate, and there were distinctions between the adult male estate, the female estate, and the youth estate, and I was responsible for all of those.
Counsel Inquiry: I see. So you would draw, sort of, three groups?
Ms Lucy KC: I would draw three groups with distinct needs –
Counsel Inquiry: Distinct needs.
Ms Lucy KC: – that we needed to consider differently, generally, and throughout the pandemic.
Counsel Inquiry: Okay, thank you. Before we consider the impact of the pandemic on the youth estate, which is of course what this module of the Inquiry is focused on, I’d like to take a brief snapshot of the, sort of, state of children’s prisons on the eve of the pandemic, looking, in particular, at time out of cell and education.
And to do that, I’d like to bring up the inspectorate report from 2019 to 2020. This is the annual report, it was actually published in November, so after the pandemic, and the restrictions had come to pass. But it gives us a picture of what the prisons were like just on the eve of the pandemic.
So if we can turn, please, to page 9. Yes, this is just in definitions which I think is helpful. The Inspectorate defines solitary confinement as:
“When detainees are confined alone for 22 hours or more a day without meaningful human contact …”
Then if we can scroll down, please, to page 72. This is the chapter focused on children. And looking at the report on time out of cell, it says:
“While children had reasonably good time out of cell on weekdays at Parc and Werrington [these are youth offender institutions] elsewhere, they simply did not have enough time outside of their cell – in many cases, including time for education – to access everyday basics, including association, showers and telephone calls. At Feltham A, children were unlocked on average for only 4.2 hours on a weekday and much less at the weekends. At the weekends, the experience of the children was poor across the estate … only 27% said they spent more than two hours out of their cell on a Saturday or Sunday.”
That two hours is an important distinction because less than two hours is tipping into solitary confinement territory. It also says:
“Time spent in the open air was also not good enough, more than half of children said they did not get daily access to exercise outdoors.
“The continued inability of many sites to provide children with enough time out of cell to access sufficient education, exercise, and meaningful human contact with others significantly affected outcomes across all areas.”
And if we can just turn, please, to the next page, page 73, which is considering education. So the table, table 12, reflects Ofsted assessments in education, and it shows that none of the institutions were outstanding. A little under half were good, but more than half were “requires improvement” or “inadequate”.
Would you accept that this inspection report shows that there were significant problems in the management of prisons for children, and particularly in respect of their time out of cell and in the education standards that prevailed?
Ms Lucy KC: I accept that there had been some assessments of the estate, of the youth estate, and many of the institutions should and could have – should have been operating better on a number of levels.
I should say that we, one of the – you mentioned the work that I was doing during my time as prisons minister and obviously in this period a lot of it was spent dealing with the pandemic, but it wasn’t the only thing I dealt with during the pandemic and one of the things I was looking at over this period whilst I was prisons minister was how should we treat young people in prisons? And one of the things that we were doing as a policy matter was moving from YOIs to secure schools, so away from a prison system and into an institution that offered education as its core, where children were still in the secure environment, and we did manage to set in train the process to set one of those up, and that was what we were trying to do to move away from this type of system into a new system.
Counsel Inquiry: I see. So the objective, if I’ve understood correctly, is to move away from youth offender institutions, for example, which are prisons, towards a secure school system. I think we’ve heard evidence already in the Inquiry about, I think, the Oasis group setting up –
Ms Lucy KC: Exactly, so that was the one that was our first – was going to be our first secure school, run by what is essentially an academy trust.
Counsel Inquiry: Yes. And so can I take from that there’s an understanding that the secure estate wasn’t operating as it should, and that it was therefore necessary to move away from prisons for children towards a different model?
Ms Lucy KC: I think those are two distinct issues. One is the estate, as shown by this, could have been operating better. And secondly, what is the right policy proposal for children who have offended.
Counsel Inquiry: Of course.
Moving on, then, from the period before the pandemic, and I should, just for the sake of completeness, you were aware of the issues in the estate before the pandemic arose?
Ms Lucy KC: Yes, and it’s not confined to the youth estate.
Counsel Inquiry: Okay. So then if we move on now to the response to the pandemic and the lockdown of prisons in March of 2020. In your witness statement you address your evolving understanding of the pandemic and the steps taken by the Ministry of Justice to ensure readiness for the impact of the pandemic on prisons, and initially, the plan was to operate normal regimes for as long as possible in line with advice from PHE, and I think we have here a public statement made by you on 12 March, it’s INQ000611331.
If we can scroll, please, to – yes, page 2 of – this is a public statement made by you.
And the last bullet point is:
“We understand that prisoners and their loved ones might be concerned about the situation. But we can assure them that we will continue to operate normal regimes with the minimum disruption, for as long as we can.”
Do you remember that statement?
Ms Lucy KC: That was the feeling by other ministers, by HMPPS, and was the advice of our expert Dr O’Moore. Yes.
Counsel Inquiry: Yes. And was that because a sort of normal regime, if we’re focusing on children for the time being, that a normal regime for children would be better for them, that they would be able to have activities outside of their cells, that they could have access to education visits?
Ms Lucy KC: Absolutely. Yeah.
Counsel Inquiry: And so the intention was to keep that running as long as possible.
Ms Lucy KC: Well, actually, it wasn’t just because of the – I mean, we know that you get better rehabilitation if you have purposeful activity, have better wellbeing if you are occupied and engage with human contact. You get better outcomes if you get education. So those are the advantages of continuing a normal regime. But also, you know, we also have to think about prison disruption and riots, and obviously the more content the children were, the easier it is for staff as well, and the more – obviously the environment is better for everybody who works there.
Counsel Inquiry: At a certain point the plan changed away from operating a normal regular for as long as possible to implementing a national lockdown.
If I can take you to your witness statement now at paragraphs 94 and 95, where you deal with that. You say:
“On 23 March … the Lord Chancellor attended the COBR meeting at 1700 hours. Shortly before the meeting, the Cabinet Office circulated a paper on ‘Social Distancing: Temporary Additional Measures’. Actions and Decisions from the COBR meeting were circulated [just after 7] and the Prime Minister announced a national lockdown in a television broadcast at 2030.”
I think almost all of us remember that televised broadcast.
And then at paragraph 95:
“Given the decision had been made and publicly communicated, it was our role and immediate priority for the [Ministry of Justice] to implement the national lockdown across its business areas including the prison estate. On 24 March 2020 my Private Secretary emailed me at 0701 hours stating: ‘As mentioned last night, the team is working on what the PM’s announcement yesterday means for prisons and probation’.”
Can I take it from your statement that it was at the point of that public announcement by the Prime Minister that the plan for prisons had changed and that to you would, therefore, sort of pursue a national lockdown.
Ms Lucy KC: So, can I give you a little bit of context, because you’re factually accurate but I don’t think it exactly explains what was happening in prisons at that time.
Counsel Inquiry: Please.
Ms Lucy KC: So we were in the position – we wanted to continue a regime as normal as possible, but by that time the regime was not normal. So we had a pandemic within our prisons. We had staff going sick, we had prisoners getting sick, and we had arrangements within prisons already, as advised by PHE, as to how we should deal with separating people according to whether they were showing symptoms or not, and also when they were coming new into the prison.
I think we were operating at that time at 50% operational capacity. We were always very concerned about losing staff, and being able to operate our prisons effectively. So, by the time of the national lockdown, HMPPS had prepared guidance, which you might be taking me to, but at this stage we had guidance which could be put in place if we had to go to a system that – were a particular prison was so infected that it could not operate as it usually was and had to be severely restricted in its operations.
So you’re right to say that we implemented a national lockdown because the Prime Minister announced a national lockdown and we had to implement that and follow what he had stated, but there was a transitional period between a normal regime and where we were.
Counsel Inquiry: Yes, I see. Well, I don’t think I need to take you to the guidance but it’s certainly right that there had been guidance circulated by HMPPS to prisons explaining, as you say, that they might have to have a more restricted regime if they were unable to meet minimum staffing levels, I think MSL it’s called, the guidance?
Ms Lucy KC: Yes, that’s right.
Counsel Inquiry: Yes, that’s right.
Ms Lucy KC: Yeah.
Counsel Inquiry: And so the position was if they were unable to operate a normal regime –
Ms Lucy KC: Exactly.
Counsel Inquiry: – they would have a severely restricted one.
Ms Lucy KC: Yeah.
Counsel Inquiry: But it wasn’t envisaged until the announcement that, whatever the staffing levels, there was going to be a lockdown of all prisons?
Ms Lucy KC: No, what we were preparing for was that we thought it was likely that individual prisons would go into a lockdown scenario, because that was required from a health perspective, but on the – when the Prime Minister made his announcement, it became clear that we had to go to a national lockdown across the estate.
Counsel Inquiry: Okay. Then, moving on to 24 March, so the day after the announcement, you describe the decision making in your statement here at paragraph 96, so you say:
“The Lord Chancellor, I and officials met on the morning of [the 24th]. I cannot remember this meeting and the readout I have seen does not state who attended or provide details of the discussion. The Lord Chancellor would have been the decision-maker. I am sure that we would have been advised by HMPPS, following their overnight reflections, that as a result of the Prime Minister’s decision to introduce the first national lockdown, we needed to move to full lockdown. We would have also considered all the factors which we were already aware of and had sought advice on, including the risk of transmission within the confined custodial estate and the operational considerations. It was recognised by everyone that we needed to mirror the impacts on the community within prisons.”
What I want to ask you about is this idea of mirroring the impacts on the community within prisons.
If we’re considering just children for the moment, there are significant differences between a lockdown in the community for children and a lockdown in prisons. So, for example, children in the community at this stage were, in the main, required to stay in their own homes with their families. That’s right, isn’t it?
Ms Lucy KC: Can I give a bit of – you’re right, and that is what I say and it is one of the considerations, but would you mind if I set out what we were considering, because I don’t know whether it comes across sufficiently in terms of the decision making that we had – that we were making and factors we were considering at that time –
Counsel Inquiry: Please?
Ms Lucy KC: – before I go on to address your question about the mirroring of the community?
Counsel Inquiry: Yes.
Ms Lucy KC: So at this stage, we were advised by our expert, with whom, you know, we – who had been advising us for a long time, and whose instincts we shared.
So, if you remember, PHE had advised that we should be open up for as long as possible. So, in that context, the advice that we needed to lockdown, and the consequences of lockdown, we trusted, because our instinct and his instinct initially had been the same. So he advised that if we did nothing, we were looking at 2,500-3,500 people dying in prisons, which, as you can imagine, as a minister, you take extremely seriously that that might happen on your watch, and your responsibility.
We were also really worried about staff. So in our preparations that we were doing for this, as you said, the minimum service levels, mainly we were thinking about: what do we do if we don’t have enough staff to run the prisons? And that was our main issue because that was the biggest threat.
Now, if people were dying in prisons and catching Covid and giving it to staff, the staff not only would suffer, and we had a duty of care to staff, but also they wouldn’t be able to come in and service the prison. That meant we possibly wouldn’t be able to even provide the basic level of care. We wouldn’t be able to feed people, we wouldn’t be able to open up for their showers and take them to the toilet. So we were really worried about whether we were going to have staff that were coming in at all, and would they refuse to come in? You know, they were all scared. They were at home, and would they just not come in? Some of them had caring responsibilities, some of them had ill illnesses that meant that they might have been significantly affected.
So those two factors: we were responsible for people potentially dying and we were responsible for making sure – duty to our staff, and that they came into service prisons, were foremost in our mind at the time.
Counsel Inquiry: I see.
Ms Lucy KC: But also, we were worried about riots – we were – not just worried about riots because of our own obligations to the prisons and looking after young people, but if we had a riot in the prison at a time when we were trying to keep the public calm and have a sense that the government was in control of coronavirus, that wasn’t going to really reflect well on the government and, therefore, the country as a whole.
So we had all these wide considerations to take into account, and I’m sure we’ll come on to how did we think about children within that context.
Counsel Inquiry: Yes.
Ms Lucy KC: But many of those – obviously the deaths were going to – would have been less significant in the youth estate, but the other factors were exactly the same: would we have staff to come in to look after the – what would – would there be a riot in the youth estate?
Counsel Inquiry: Yes.
Ms Lucy KC: So those were the key factors that we were thinking about. So yes, we did also think about we needed to mirror the community, we needed to think about how did the direction that the Prime Minister make actually literally apply in prisons and what we were advised was that a household was a cell, not a wing and not a prison. And so we had to implement all of that, and at the same time, we thought it was reasonable to think about the restrictions in the community and implementing them in prisons, not only so we would be doing the right thing as a matter of law and following the policy, but so that people would understand what we were doing and we could communicate it in that way.
Counsel Inquiry: I see. We will come on to discuss, in due course, the deaths in the prison and the advice about that, and also about minimum staffing levels, but if we can just, for the time being, focus on the mirroring in the community because that’s at least one of the reasons. Yes.
Ms Lucy KC: Sure.
Counsel Inquiry: So would you agree with me, therefore, that children in the community, that there are important differences, that they were required to stay in their own homes with their families, so not separated from their parents or carers?
Ms Lucy KC: I think we asked HMPPS, “What did it mean?” and they said a cell was equivalent to a household. So that was our starting point. I think it’s very difficult, I mean, I can answer your questions clinically, if you like.
Counsel Inquiry: Yes.
Ms Lucy KC: But I think it’s very difficult to do an exact comparison: what do we mean “in the community” and what do we mean “in prison”?
Counsel Inquiry: Yes, I mean, I think that’s the point I’m trying to make. You were talking about the importance of mirroring conditions, so drawing a sort of comparison there.
Ms Lucy KC: Well, people were – what I mean by mirroring conditions is, you know, we were all at home, all of us. You know, I was at home, my kids were at home. You know, school was restricted. You weren’t allowed to go outside much. You know, you were restricted to how much you went outside. You weren’t allowed to go to the gym. People weren’t allowed to come to your house. So those were the sort of broad levels of community restrictions which were applying to everybody across the country and those were the sort of things we were thinking we needed to do in prisons.
Counsel Inquiry: Yes. But children in custody weren’t in their homes with their parents, they were alone in their cell, separated from their caregivers and not allowed to have visits. So it’s quite a big distinction, wouldn’t you agree?
Ms Lucy KC: So I went into politics because I care deeply about young people and wanted to make sure that all young people have opportunities, and I think that we did very carefully think about how did this affect the youth estate. We restricted social visits because nobody was allowed social visits from their families, and I don’t think any parents would have come in any event.
But you’re right, you know, if you’re asking me: were children in prison particularly affected? Was it very difficult for children in prison at this time? Of course it was very difficult for children in prison. They were isolated, they were without their families. It was difficult for them, whether they were in lockdown or not and it was exacerbated by lockdown, yes. If that’s what you’re asking, absolutely, yes.
Counsel Inquiry: Yes, and that, unlike children in the community, vulnerable children who were in the community were able to attend school. Children in prison, on the whole, were vulnerable, more than half of the children in custody were care experienced. They couldn’t attend school. So the question is, if I can just put it this way –
Ms Lucy KC: Sure, yeah.
Counsel Inquiry: – is, you referred to mirroring conditions in the community as a reason for imposing this national lockdown, but my point is that there was no mirroring. The conditions for children in custody were in fact a lot more severe and a lot worse than children in the community.
Ms Lucy KC: So I think mirroring the provisions in the community were one of a number of factors of which was probably the least important. The most important was that we were stopping people dying on our watch and that we wanted staff to come into prisons and we didn’t want riots across our estate. So those were the most important factors. And that prisons were a vector for illness. So it was, if you – we knew that if you’re in an enclosed environment, it was more likely you were going to suffer from getting coronavirus.
So those were the overarching factors that we considered when we made our decisions.
But we needed to lock down, you know, we were told we needed to lock down, so we did.
Do you want me to address the education point at this point?
Counsel Inquiry: Well, we will come on to that because firstly –
Ms Lucy KC: Because I would say to you that we did try and we did provide for education to continue in the youth estate.
Counsel Inquiry: Ms Frazer, we will get to that.
Ms Lucy KC: All right – (overspeaking) –
Counsel Inquiry: There’s an order that we’re trying to proceed through.
Ms Lucy KC: Sure.
Counsel Inquiry: I’d like to deal now just with the advice about the risk of deaths. So this is the advice of Éamonn O’Moore.
If we could pull that up now. It’s INQ000591144.
So this advice from Éamonn O’Moore, dated 24 March 2020, so the day after the Prime Minister’s announcement. It’s a briefing paper. “Prison population management considerations in response to COVID”.
The summary is that, I think as you alluded to:
“Prisons are high-risk settings for large outbreaks of COVID-19
“Many people in prison are … clinically vulnerable …
“Risks include excess death rates; need for specialist NHS care …
“…
“Single cell accommodation has distinct advantages in supporting protective isolation … of vulnerable prisoners.”
And if we scroll down the page, please, we have this figure that you’ve mentioned, in the penultimate line:
“… HMPPS modelling (undertaken with PHE) has indicated the possibility of high numbers of deaths in custody and suggests in the region of 10 times the number that we would normally see with … 2,500-3,500 based on the reasonable worst-case scenario. Potentially half of these deaths may occur over three weeks at the height of the outbreak.”
Is this the briefing from Dr O’Moore that you recall receiving in the early stages of the pandemic?
Ms Lucy KC: Yeah.
Counsel Inquiry: Okay. This briefing doesn’t mention children and young people, and many of the factors which the advice is based on wouldn’t apply. So, for example, children are not older, obviously they’re children. And if we just zoom in to the background section. Dr O’Moore says:
“Prisons are epicentres of infectious disease because of higher background prevalence of infection, the higher levels of risk factors … the unavoidable close contact in often overcrowded and poorly ventilated and unsanitary facilities …”
So children’s prisons were not overcrowded. We know that.
Furthermore, all children’s prisons have single-cell accommodation and children’s prisons don’t concentrate individuals who are susceptible to infection and those with a high risk of complications.
Quite the opposite: children’s prisons would concentrate individuals who weren’t at a higher risk.
So this advice, though startling and pointing out high numbers of deaths that could occur, is really only appropriate to the adult estate and not to the children’s estate.
Ms Lucy KC: So advice, this particular advice, is mainly about releases, which we will come on to.
Counsel Inquiry: Yes.
Ms Lucy KC: But the fact that we were going to see – the fact that there was a high risk – let’s just take a step back.
We all knew that – the ship that had – I think it was in Japan –
Lady Hallett: The Diamond Princess?
Ms Lucy KC: Yes, the Diamond Princess. Contagion had spread throughout the prison at a significant rate. We all knew that, whether we had expert evidence or not.
Now, if we had – you’re right to say, and the advice is right to identify, that the people who are most at risk were people who were seriously ill and who were older. So of course, the risk was higher for those in the adult estate, and particularly where they were elderly. But that didn’t mean that the children were not at any risk at all. And if we’d seen one child die on our watch, that would have been a significant issue for us as ministers.
So of course the risk was lower but it wasn’t nil. But in addition to that, if the kids had got sick and infected the staff, (a) the staff might not have been able to go into work, wouldn’t have been able to provide basic care, (b) they might have overwhelmed the NHS facilities in the local community, if we had a situation where we had a huge number of people who were sick although not about to die.
So, yes, of course, it was stronger, and the risk was higher in the adult male – in the adult estate, and particularly in some prisons where we had sex offenders who were older. But there was risk everywhere, and we were responsible as ministers for that risk.
So we needed to take this advice and the advice we were given more broadly about what we knew about – and remember, we only knew later that Covid wasn’t as serious as we thought it was. So at this stage we’d been told, very recently, that we could see thousands of people dying on our watch, and that we might be – have a staff situation that is overwhelming.
So those are the factors that we took into account. Plus we have a national lockdown situation where we’ve been basically ordered to lack down. Those are the factors that we take into account at the time.
Ms Pottle: The Inquiry’s reviewed the advice provided by Public Health England to the MoJ and cannot find any that relates to the specific needs and vulnerabilities of children until November of 2020, when advice was given concerning the new restrictions which were brought into force at that time.
Can you help us, was a decision taken not to commission a similar piece of advice for children in March 2020? Or was it simply – (overspeaking) –
Ms Lucy KC: Of course there wasn’t a decision not to provide advice. So Éamonn O’Moore, who was our expert in whom we all had a huge amount of faith, and whose instincts we agreed with, was advising, as far as I was aware, HMPPS on a regular basis. Every single time we had a virus in a particular prison, Éamonn O’Moore went into that prison – or, I don’t know how he did it, but he advised specifically on what arrangements ought to be adopted in that particular prison.
So, he was responsible for advising on the estate as a whole, which included the youth estate and the female estate. And we did have some infections in the youth estate.
Counsel Inquiry: Yes.
Ms Lucy KC: We also had discretion in the rules according –
Counsel Inquiry: Yes, we’ll come on to the rules and the guidance in a moment.
Ms Lucy KC: But I think you’re suggesting that we didn’t take into account the children. We had an expert – and I would refute that. We had an expert who was advised – who was specifically there to advise us on our entire estate.
He didn’t say to us, “By the way, do something totally different in the children estate, and I suggest we do this”, and we all follow it. We followed his advice as to what he gave us to do across the estate, and he went into institutions and advised on an institution-by-institution basis, and we followed his advice.
Counsel Inquiry: Okay. But what I would suggest to you is that he was focused on the adult estate, which was 99% of the prisoners with which he was concerned with?
Ms Lucy KC: And that’s why I said we didn’t – that’s why I corrected you. We had three different types of estate. They were all important to us. We took specific individual decisions in relation to pregnant women, who were very few in number, because they were important.
We tried, and I’m sure we’ll come on to it, to ensure that the youth estate was treated differently, with human contact and education. So of course, it took us a huge amount of time, and there were more incidents across the estate, there were more outbreaks in the adult male estate, there were more issues to deal with, but as I’ve looked back over my papers I see peppered throughout it reference to the youth estate.
Counsel Inquiry: Yes?
Ms Lucy KC: And in fact at one stage I see a note where my private office is recording a meeting –
Counsel Inquiry: Ms Frazer, I’m sorry to stop you, but there are some questions that I need to ask you.
Ms Lucy KC: Very happy to answer your questions.
Counsel Inquiry: Yes. So if I could just put the question.
What I would suggest to you, with respect to the advice from PHE England, is that that advice which we saw was focused on adults, at that stage in the pandemic, in March, and he didn’t provide advice specific to children and you didn’t ask for advice specific to children. And in that way, in the haste of a national lockdown which wasn’t planned for, the needs and specific vulnerabilities of children were overlooked.
Ms Lucy KC: I don’t accept that. I think, if he had wanted to advise on doing something very different in the youth estate, we would have taken that advice, and we certainly didn’t instruct him not to advise us on particular parts of the estate.
And we had regular meetings with him and asked him questions. And we did provide, and I look forward to coming on to it, for different rules in relation to the youth estate.
Counsel Inquiry: Yes, well, let’s move on now to the impact of the national lockdown on the youth estate.
If I can begin with the guidance that was put in force, first on 24 March.
So if we could bring that up, please. It’s INQ000530765.
And if we just look – yes, so this is “COVID-19 Operational Guidance Temporary regime to reduce risk”.
If we just go to page 3. It sets the background:
“On 23 March … the government announced new rules on staying at home …”
That was the Prime Minister’s announcement.
Then it says at the bottom there:
“In prisons, this means that people in prison will spend more time in their cells. They will, however, be given access to essential services including meals, showers, telephone contact with loved ones and legal advisers, access to health services, and where possible, time in open air.”
And it also says:
“All non-essential activities involving groups of people should be stopped. This includes social visits, education, non-essential work, association, communal dining, periods of mass prisoner movement, religious services, and access to the gymnasium.”
On page 7, we come to the Youth Custody Service. It says:
“The [Youth Custody Service] will operate under the same temporary guiding principles as the rest of the adult estate when it comes to carrying out the Government’s instructions on social distancing. All non-essential activities and activities involving large groups of people or a mass movement of young people have been ceased.”
Children would have access to telephones in their rooms and have be given extra credit to keep in touch with their families.
“Children in custody are recognised as a particularly vulnerable group and additional safeguards should be considered by governors and directors of STCs where necessary. Human contact is especially important for children and this should be provided where possible and practicable, via teachers, key workers, youth workers, etc, whilst still adhering to strict principles of social distancing. Provision of additional in-room activities, and education should be considered and routinely provided.”
So this was the guidance which came into force straight away.
Ms Lucy KC: Yes.
Counsel Inquiry: It is not entirely clear whether education for children would continue or not, I would say. At the beginning it says that there would be no education. And then when you go on to the section dealing with children it says “human contact is important”. And there’s ambiguity, it seems in the last sentence “You might have education in rooms”, I suppose, but there wasn’t a clear statement in this guidance to say that children should still have face-to-face education in their classrooms. That’s right, isn’t it?
Ms Lucy KC: Well, you can read what it says.
Counsel Inquiry: Yes.
Ms Lucy KC: I would say you’re sort of looking at it as a lawyer after the event, when things were developing at massive pace, and what I see when I read this document, and I think back and I reflect on what I felt at the time as evidenced by the documents, is that there was a shared understanding at a ministerial level which was reflected at an HMPPS, a leadership level, that education should be provided for young people.
So that’s what I discussed in the meeting that I had the afternoon after the decision was made, I was told by Helga and Dr Farrar that education would be provided, and we can go through all the, you know, all the incidents and the evidence, but the view I had at the time was that education would be provided. It would not be provided in the same way, potentially in a classroom setting, but in small groups. But it was the clear intention of the management and the ministers at the time that education would be provided in the youth estate and would not be provided in the adult estate.
Counsel Inquiry: Okay. And when you say not in the normal way, in small groups, so face-to-face, not in the room but in smaller groups so you could comply with social distancing; is that what you had in mind?
Ms Lucy KC: I’m not in charge of operations or indeed how it plays out. My understanding at the time was that education would be provided, in some way. As far as … so the guidance gave the institutions discretion which was necessary and they were all required to do their own plans and as a minister I asked to see a plan because I wanted to make sure that each institution was doing their own plan. And each institution should have been able to think: what can we provide in terms of education and human contact within the confines of a pandemic.
Counsel Inquiry: Okay.
Ms Lucy KC: And that’s what they should have been doing on an institution-by-institution basis working with providers, their staff and the children.
Counsel Inquiry: Yes, Ms Frazer, I just want to check with you. You said there was a common understanding –
Ms Lucy KC: Yes.
Counsel Inquiry: – and I just want to explore whether that understanding was that education would be, you know, worksheets pushed under the door or would it be – well, not in a classroom but – (overspeaking) –
Ms Lucy KC: No, I understood – I understood it was some form of face-to-face education.
Counsel Inquiry: Okay.
Ms Lucy KC: Not worksheets. I mean, worksheets were definitely discussed and I knew worksheets were happening. I knew things were being pushed through doors and that was the bare minimum that I was hoping or expecting would happen. But my understanding was that, at the outset, it was – each institution should be considering and providing education.
Counsel Inquiry: Of course. Well, if we can move to your witness statement, paragraph 203. So that’s reference INQ000588042.
This is a part of your statement where you discuss expectations around education.
Yes. So just prior to that, sorry. We can scroll up the page. Pardon me.
Yes, so on 24 March, the Children’s Commissioner wrote to you raising concerns and you wanted to highlight the position on education within the youth estate. This was one of the main areas of differences for children as opposed to adults, and:
“It was our clear position that education should continue … this was resisted by the … providers.”
And you refer to correspondence between the Youth Custody Service and the providers.
“On 24 March … the managing director of Novus, a contracted education provider, sent a notification to all Novus staff saying that: ‘All non-essential activities involving groups of people should be stopped. This includes social visits, education, non-essential work, association, communal dining … and access to the gymnasium.’ This … was forward to the [Youth Custody Service].”
So this was their understanding that there would be no education.
And if we scroll down, please, to paragraph 203:
“[The Youth Custody Service] replied to [the education provider] saying: ‘We fully accept that classroom-based education needs to cease (and indeed has).’”
And that’s in line with your, sort of, understanding, is that right, that the classroom-based education would cease. But:
“… given the particular vulnerabilities of the children in our care, and the importance of some human contact and structure … we are exploring what on-unit outreach … type activities can be provided … while still strictly adhering to social distancing requirements placed on all of us’.”
Does that accord with your understanding at the time that there would be an exploration of on-unit outreach-type activities?
Ms Lucy KC: Well, I continue the sentence:
“… while strictly adhering to social distancing requirements …”
Counsel Inquiry: Yes.
Ms Lucy KC: And I’d emphasise the words “human contact”. I mean, I don’t even know whether I saw this letter at the time but my understanding was that each institution – I don’t think you can read particular words and therefore deduce a particular – I’m just –
Counsel Inquiry: I’m just trying to understand –
Ms Lucy KC: So my understanding is that there would be, you know, they’re talking about adhering to social distancing requirements. That, to me, envisages a situation where you’re in the room with somebody else –
Counsel Inquiry: I see.
Ms Lucy KC: – getting some sort of provision.
Counsel Inquiry: Okay.
Ms Lucy KC: It refers to human contact which, to me, envisages you’re in the room with another human.
So, my understanding at the time – and, you know, as you said, I’m dealing with a large estate, and the youth estate, and policy considerations and a load of other issues, but my overall understanding at the time was that we wanted to provide education of some kind that – and that was Dr Farrar’s clear position in all my conversations with her, and that didn’t happen, as we later see, and we can go on to the reasons why that didn’t happen, but we were intending to provide human contact through education.
Counsel Inquiry: Okay, well, the guidance in place at the time, and the guidance –
Ms Lucy KC: Can I just correct myself, it did happen in Parc, sorry.
Counsel Inquiry: That’s right, yes.
Ms Lucy KC: And it did potentially happen in some other places as well.
Counsel Inquiry: Yes. But the guidance in place at the time, and it was amended from time to time, until we got to the national framework for coming out of lockdowns, none of the guidance ever said, in terms, that children should have face-to-face education. And what I’m trying to explore with you is whether that was a miscommunication between you and HMPPS, or was it a resistance from HMPPS to do that?
Ms Lucy KC: I don’t know why the guidance didn’t explicitly say it, because – but it did imply it. At a minimum. I think it did more than that. It said human contact was necessary and education should be considered. And it was my understanding that that’s what HMPPS was trying to provide.
Counsel Inquiry: We have heard evidence from Charlie Taylor –
Ms Lucy KC: Could you (inaudible) just repeat your question, because I’m not sure I answered your particular questions. I’m happy to if you want me to.
Counsel Inquiry: No, I think you have.
Ms Lucy KC: Okay.
Counsel Inquiry: – (overspeaking) – I think. Thank you.
We’ve heard evidence from Charlie Taylor from Her Majesty’s Inspectorate of Prisons already, that face-to-face education did continue at YOI Parc, as you mentioned.
Ms Lucy KC: Yeah.
Counsel Inquiry: And his evidence was that HMPPS prevented education from taking place.
And I’d like to take you to the transcript of his evidence, if I could.
Ms Lucy KC: Sure.
Counsel Inquiry: It’s reference PHT000000202, page 72, lines 6-17, please. Yes.
So he was asked:
“… what do you mean … ‘efforts were undermined’? Was it the case that governors were ready to bring back face-to-face education?”
This is Mr Taylor’s response:
“… the trade union for the education providers had decided to withdraw members from those prisons. But it was the directive. As we saw often during the pandemic, was that directives were about prisoners generally and the needs of children were an afterthought, very often, here, and you’ll see some of the correspondence from my predecessor, Peter Clarke, about that. But the result was that a guillotine was placed on education. And attempts to reopen education were quickly – and nothing really got going until we were back in the summer, later on in the summer.”
So do you accept that HMPPS played a role in stopping face-to-face education?
Ms Lucy KC: So can I just tell you what I knew? So, first of all, I don’t agree with Charlie Taylor that the directive was a guillotine. And my reading of the guidance, education was to be considered and provided. So I don’t accept that that’s what the directive – if he’s referring to the guidance – I don’t accept that’s what it says.
Secondly, Charlie Taylor wasn’t in post at this time. Peter Clarke was in post at this time.
And if I could just go through a couple of incidents which maybe draw out why I believed education was being sought to be provided and potentially was being provided on the estate and that HMPPS wasn’t stopping it.
So I can’t – to answer your first question –
Counsel Inquiry: Yes, you can –
Ms Lucy KC: This –
Counsel Inquiry: Ms Frazer, sorry, you can, but I think I’ve got one more piece of evidence on this to put to you.
Ms Lucy KC: Okay, so I’ll do it –
Counsel Inquiry: I’ll do that first and then you can answer.
Ms Lucy KC: Right, so let me answer your specific question.
Counsel Inquiry: All right.
Ms Lucy KC: Because the Children’s Commissioner – I had a number of conversations with the Children’s Commissioner, and I always – when I was concerned by what the Children’s Commissioner said to me, I always raised them with Dr Farrar. I had a daily meeting with Dr Farrar, and when any stakeholder raised an issue with me, I raised it with Dr Farrar, usually the next day.
So, the Children’s Commissioner said to me, “HMPPS is stopping education.”
And I said to Dr Farrar in one of my meetings, and there’s a note of it, I said, “I hear that you’re stopping education.”
It was on 1 June. She said, “We are not stopping education, the unions are preventing education.”
So that’s what was reported to me.
Counsel Inquiry: I see. If I could take you to the Independent Monitoring Board’s report from 2019 to 2020.
That’s the front page of the report. And if we could go to page 16, please.
This is another report. It says:
“At Cookham Wood, Novus education staff provided remote resources, including individual work packs, newsletters and prison radio podcasts that were pushed under room doors within lockdown. Within two weeks … [they] had developed a risk assessed plan for partial return to education.”
Which was supported by local staff, management and unions.
“However, it was rejected at higher levels in the prison service by HMPPS Gold Command, though a very similar plan was implemented four months later.”
So this is another report from another independent agency looking at prisons –
Ms Lucy KC: Yeah.
Counsel Inquiry: – which repeats, in essence, the same claim that Mr Taylor has made.
Ms Lucy KC: Sure.
Counsel Inquiry: Do you think that they both got it wrong?
Ms Lucy KC: Well, let me tell you what I knew at the time. So, first of all, this issue of Novus preparing something and HMPPS rejecting it was never raised with me, as far as I can recall. And I think had it been raised with me, I would have put it to Dr Farrar, as I did all other issues.
I spoke regularly to all the providers. Every single time I made an announcement I spent – I did 20 calls. This happened about five times during my – during the course of the year, and the IMB were one of my stakeholders, and I don’t recall this particular issue being raised.
This report was produced after I left office, so I didn’t investigate it because it wasn’t in my time.
Can I just give you a couple of points which hopefully show you why I – why that is my recollection, that HMPPS were trying to provide education, which are contemporaneous at the time.
So, first of all, we’ve already seen Novus, and you’ve seen – so Novus is the provider that you’re referring to here.
Counsel Inquiry: Yes.
Ms Lucy KC: And it was Novus that wrote saying: please stop education.
Counsel Inquiry: Yes.
Ms Lucy KC: And you saw YCS’s response to that, which is to push back against Novus, saying: No, you do have to provide something.
Another interaction I had on education was the POA came to see me and the Lord Chancellor in late April, I think it was 27 April. And in that meeting they complained that education was being provided at Parc.
Counsel Inquiry: Yes.
Ms Lucy KC: And they asked the Lord Chancellor to stop education at Parc.
So it was clear that the PAO did have a view that education would stop, and they were putting up some resistance to it, because they personally raised it with me and the Lord Chancellor.
Counsel Inquiry: Yes. And the POA, that’s the Prison –
Ms Lucy KC: Sorry, the Prison Officers’ Association.
Counsel Inquiry: So a sort of trade union for the prison officers?
Ms Lucy KC: It’s the trade union, who we – and the third thing is that you’ll recall from my witness statement that I did virtual visits, and the first virtual visit I did was – I wanted to know what was happening on the ground.
Most of my information came from Dr Farrar. I wanted to hear firsthand from people other than the stakeholders, so I asked to visit the prisons virtually, because I couldn’t go face-to-face.
My first one was on 13 May. I asked for it to be the youth estate. There were three governors virtually in the meeting, and I asked them all how things were going, and they had an opportunity to share any concerns with me. One of the institutions said education will start imminently.
So, that was 13 May, before the guidance had come out. So, not only was Dr Farrar telling me they wanted, but there was a problem, institutions were telling me that they were trying to provide it, and they had plans to provide it. So they were – obviously had read the guidance in the way we had intended it to have been drafted. In the national framework obviously we set out specifically that education should be provided.
And then the other incident that underlies that it was the POA that were pressing for education not to be provided is on 30 December – so a long time later, when we have provided education in the new national framework – specifically on 30 December, Dr Farrar tells me that the POA say they want to stop education.
Counsel Inquiry: Yes.
Ms Lucy KC: So it was clear to me that the POA were raising issues around education. So obviously that’s very difficult for HMPPS. And that’s how I saw the situation at the time.
Counsel Inquiry: Well, there could be two different barriers, couldn’t there, to education. There could be the Prison Officers’ Association and, at the same time, directives from some senior members of HMPPS. When – (overspeaking) –
Ms Lucy KC: That’s entirely possible. All I can tell you is what was told to me and what I believed at the time.
So if I answer your question from a different perspective, and it’s possible. It’s possible. I don’t know what I wasn’t told, and I wasn’t on the ground. But what I do know, because I spoke to Dr Farrar every single day, is that I understood she shared my views that education should be provided.
Counsel Inquiry: Well, assuming that the reports from the Independent Monitoring Board and the Inspectorate of Prisons are accurate, it sounds as though Dr Farrar either didn’t know or wasn’t telling you the full picture.
Ms Lucy KC: You’re suggesting, and supposing hypothetical things that I don’t know.
Counsel Inquiry: Well, we have the reports from the Independent Monitoring Board and we have the reports from the Inspectorate.
Ms Lucy KC: You have got two bits of evident and I have a year’s worth of understanding. You might be right. I can only tell you what I heard.
Counsel Inquiry: Okay. You mention in your witness statement a sensitive relationship with the Prison Officers’ Association. Did the need to heed those sensitive relationships and their views about the provision of education contribute to the reduced provision of education for children?
Ms Lucy KC: I can only – I wasn’t involved in any of the discussions with HM – I wasn’t involved with any of the discussions with the POA. I know it was a sensitive issue, and the HMPPS told me they had to handle it very carefully. I don’t know what was discussed.
Counsel Inquiry: You told us a moment ago that you were at a meeting where they raised it.
Ms Lucy KC: Yeah, they did.
Counsel Inquiry: Okay. So you were involved in some discussions, then, with –
Ms Lucy KC: I was in – well, we didn’t discuss it. They told us at that meeting that they didn’t want to provide education, and sort of intimated that the Lord Chancellor – who was leading the meeting – should intervene in order to stop education at Parc.
Counsel Inquiry: And did he say, “Absolutely not, education must continue for children”?
Ms Lucy KC: There’s a readout, I don’t want to misquote him, but I think he said, “We’ll look into that.”
Lady Hallett: Sorry, he said?
Ms Lucy KC: I think he said, “We’ll look into it.” I don’t remember, I don’t remember exactly but I think he said – I think he said something like “I’m sure that complies with the social distancing guidelines but I will look into it.”
Ms Pottle: I see.
Is it the responsibility of the Lord Chancellor and also the minister to manage industrial relations with the prison service?
Ms Lucy KC: So yes, and no. So I’ve tried to get over, in a number of ways, how important it was for the staff to come in every day. And Phil Copple, who was the Director General of HMPPS, had a very good relationship with the POA. And that was critical to the operation of the estate, including the children’s estate.
And Dr Farrar told us that the – it was a – that they were having difficult conversations with HMPPS.
I don’t think it’s the minister’s job to disrupt that delicate relationship and make matters worse, and therefore, I don’t think it would have been – if someone had asked me to get involved with that discussion, I would absolutely a hundred per cent have done it. Nobody did. And I didn’t offer it, whereas you’ll see throughout my statement I offered assistance on a whole range of other things proactively, because I felt that this was a matter that was better resolved by HMPPS.
Counsel Inquiry: Mm-hm. You say that you don’t think it’s the minister’s job to disrupt that delicate relationship.
Ms Lucy KC: At this –
Counsel Inquiry: At that critical time – (overspeaking) –
Ms Lucy KC: – (overspeaking) – very difficult conversations with the POA at other times but we were managing a pandemic.
Counsel Inquiry: Ms Frazer, I have to ask you to wait for the question, please. Do you accept that the management of that relationship ought not to have come at the cost of providing essential services to children in prison?
Ms Lucy KC: Well, I’ll answer –
Lady Hallett: I think that’s a loaded question, to be honest, Ms Pottle.
Don’t worry about answering it, Ms Frazer.
Ms Pottle: Okay. I’ll move on now to time outside of the cell. That was one of the impacts of the regime.
Ms Lucy KC: Sure.
Counsel Inquiry: Okay. In March, the Children’s Commissioner had written to the Lord Chancellor and knew about her concerns that children would be held in solitary confinement, and in April the Inspector for Prisons carried out a short scrutiny visit of several young offenders institutions that showed, for example, that all children in Cookham Wood were locked in their cells for more than 23 hours a day.
In May the Children’s Commissioner published a public briefing on the issue, and noted that for the majority of children, and children in YOIs and secure training centres, they’d been spending between 40 minutes and just over three hours out of their cells each day. Do you recall hearing these updates from the Children’s Commissioner and the Inspectorate for prisons?
Ms Lucy KC: Yes, where there’s records of the Children’s Commissioner and the Inspectorate raising things with me, I recall them.
Counsel Inquiry: Okay. In the Children’s Commissioner’s update, she says that the Youth Custody Service had introduced a new method for calculating time outside of the cell, and that until August 2020, there wasn’t a reliable calculation for time outside of the cell.
And I just wondered if you could help us with why there was a delay for the Ministry of Justice monitoring data about the time outside of the cell?
Ms Lucy KC: I think there’s quite an extensive paragraph in my witness statement dealing with time out of cell, but I’ll tell you my instincts on that.
So I pressed for time out of cell to be – time to be recorded because I wanted to hold the institutions to account, given the time out of cell stories, you know, reports that I was hearing.
It wasn’t a – it wasn’t something that had been measured beforehand and I think it took HMPPS some time to work out how to do it consistently across the estate. And if you could just bear in mind, HMPPS is dealing with a pandemic, it’s collecting huge amounts of data on a whole range of issues. This is a really critical one, which is why it was important we collected it. But that’s possibly why it wasn’t collected as early as it could have been or should have been.
Counsel Inquiry: Okay. Mr Taylor gave evidence to the Inquiry that as late as June of 2025, many young offender institutions are still operating restricted regimes and access to education remains reduced, and he gave examples of restrictions, including excessive amounts of time in the cell, far too many children having less than two hours out of the cell a day, and very poor access and provision of education and other purposeful activity.
I appreciate this is after you left the Ministry of Justice.
Ms Lucy KC: Right.
Counsel Inquiry: But the difficulties, the lack of provision within the youth estate continued from lockdown until now –
Ms Lucy KC: I can’t – yeah, I can’t answer to any things that go over my time.
Counsel Inquiry: Okay. I’m going to ask you now about legislation reducing –
Ms Lucy KC: Could I ask – because you’ve – time out of cell I think is really critical and there’s a few things I’d just like to say very briefly about it.
So time out of cell was linked to education. You can’t take them separately. If kids had got education as we had planned, they would have had more time out of cell. And in my view, the way to fundamentally, as a minister, to fundamentally change the picture was to change the national standards. So that’s what I could do as a minister. I couldn’t operate each institution but I could make sure that we opened – we had wider allowance, you know, fewer restrictions on the national restrictions when we opened up. I could make sure we prioritised the youth estate for opening up, which I pressed Dr Farrar to do, and which I think we did do, and I could consistently raise and measure time out of cell to make sure that was done. So those were a few of the steps that we took internally.
Counsel Inquiry: Mm-hm. I’m going to move on now to the legislation which reduced the regimes in the Children and Young People Secure Estate. So we know that the lockdown occurred on 24 March quite quickly, and it’s right, isn’t it, that legislation – statutory instruments were introduced later –
Ms Lucy KC: Yes.
Counsel Inquiry: – to provide a legal basis for that reduced regime?
Ms Lucy KC: Correct, yeah.
Counsel Inquiry: All right. I’d like to focus in particular on the changes in the secure training centre rules –
Ms Lucy KC: Sure.
Counsel Inquiry: – which came into force on 2 July 2020.
The exploratory memorandum to those changes states, for example, that:
[As read] “There is a temporary minimum restricted regime for children which reduces their time out of room to at least 1.5 hours out of their room a day.”
It would normally be 14 hours but it was reduced to 1.5 hours out a day.
[As read] “It also reduced access to classroom education.”
The statutory instrument also permitted the suspension of family visits and certain welfare obligations. It was passed, as I said, in July – came into force in July 2020 at a time when lockdown in the community was easing so non-essential retail, for example, had reopened. People were permitted to gather in small groups.
At that time, did you feel that it struck an appropriate balance between the rights of children and the measures needed to reduce the transmission of the virus?
Ms Lucy KC: I think you captured the reason why we brought this legislation in in your question to me. We needed to make sure that what we were doing was legal and therefore we needed to pass a statutory instrument to ensure that what was practically happening on the ground was provided for by legislative base, otherwise we could have been challenged, which wouldn’t have been very helpful.
So that’s what this did. We didn’t have time to do it beforehand. I think we only spotted the STCs – we hadn’t done it for STCs at a later date because obviously we did for YOIs earlier. That’s why we brought in the legislation.
I think if you read paragraph 7.2, if you’d carried on you’d have said:
[As read] “It is the minimum expected level of delivery during a secure estate alert level broadly comparable with level 4. At all times, STCs will be required to deliver the highest possible regime whilst still complying with health guidelines.”
So all we were doing was setting out a legal basis for what was possible, ie, very, very minimum regime, but we were not saying this is the minimum standard. We were saying – we were not saying this is the standard; we were saying: this is the minimum we expect but we actually expect you to go much higher than that, we expect you to deliver the highest possible regime whilst complying with the health guidelines.
Counsel Inquiry: But you’ve provided them with the option to lawfully keep children in their rooms –
Ms Lucy KC: We were legislating – (overspeaking) –
Counsel Inquiry: – for 23 and a half hours –
Ms Lucy KC: – (overspeaking) – for what was practically happening.
Counsel Inquiry: Ms Frazer, let me ask the question. You were legislating to allow secure training centres to keep children in their rooms for 23 and a half hours a day which would qualify as solitary confinement?
Ms Lucy KC: We were putting together a legal base to ensure that what we did was legal. We were not – we were, as we do with many policies and laws, we make sure that we have provided a legal base. We were in no way suggesting at this time that this was what we expected of our institutions.
Counsel Inquiry: Okay. And just to finish up on this topic before the break, there was no consultation undertaken with the Children’s Commissioner prior, no equality impact assessment or child right impact assessment; is that right?
Ms Lucy KC: So I saw the – yeah, can I – just on consultation, though it’s – it’s possible, yes, and probable, though – there was no specific consultation prior to – with the Children’s Commissioner prior to this coming into force.
But if I could just put consultation into context. Prior to the pandemic, I had no – that my office – my former office has found I had no contact with the Children’s Commissioner.
During the – between 30 March and 9 July, I met the Children’s Commissioner five times. So whenever she wanted to speak to me, I met her. Whenever she wrote to me, I met her. Whenever I had something to say to her, I met her. So she had plenty of opportunity, as did many stakeholders, to raise concerns with me. And as we’ve already identified, the YOI amendments came in before the STC ones.
So, I think – in a normal scenario, before we bring legislation, you consult with a range of people. This was not a normal scenario, but there was plenty of opportunity for people to engage with me throughout this period.
Ms Pottle: Okay. We can pause there, I think, my Lady, for a break.
Lady Hallett: Certainly. I shall return at 3.10.
And I promise you, we will finish you this evening.
The Witness: Thank you.
(3.00 pm)
(A short break)
(3.11 pm)
Lady Hallett: Ms Pottle.
Ms Pottle: Yes.
Ms Frazer, I’d like to move on now to ask you about the urgent notification issued in respect of Rainsbrook Secure Training Centre.
Ms Lucy KC: Yes.
Counsel Inquiry: The Inquiry has heard evidence from Charlie Taylor about the failings which led to the notification being issued in December 2020.
In October and November of 2020, Her Majesty’s Inspector of Prisons carried out assurance visits at Rainsbrook. And the visit in October of 2020 showed that newly admitted children who have to self-isolate are locked in their bedrooms for 14 days and only allowed out for 30 minutes. And the report said that there was no rational reason to support this practice.
Were you aware at that stage, after the assurance visit in October, that there were these concerns about Rainsbrook Secure Training Centre?
Ms Lucy KC: So looking back at what I – my recollection of this isn’t as strong as some of the other areas that we’ve covered. So – but looking back at the notes, and the evidence, I was first made aware of this on 2 November, but it was not informing me; it was just share – it wasn’t anything for me to decide or personally act; I was just shared a copy of a briefing note for information that was sent to Dr Farrar.
And then Charlie Taylor raised this with me in a call that I had on 12 November.
Counsel Inquiry: I see.
Ms Lucy KC: And then I suspect I spoke to my private office about it, although I can’t recall, because on 13 of November my private office told me that the Lord Chancellor was dealing with it.
Counsel Inquiry: I see. So if the Lord Chancellor was dealing with it, do I understand, then, that you didn’t take any further action at that stage?
Ms Lucy KC: No, I did take some action but on some things where the Lord Chancellor was dealing with it, I didn’t always take as proactive a stance as I did when I wasn’t told that. So I got a briefing note on 16 December, discussed it with Jo on the – so I didn’t – it doesn’t look like I did much after 13 November, and then I think we get the UN on the 16th, at the same time of December, I get a briefing note, I discuss it immediately with Dr Farrar on the same day and I asked to speak to the CEO of MTC, David Hood, and I speak to the CEO to raise my concerns about it on 21 December.
Counsel Inquiry: Okay. In his evidence to the Inquiry, Charlie Taylor was asked if he was given an explanation for the failure to heed the October report, because there’s the October report and then the December report.
Ms Lucy KC: Mm.
Counsel Inquiry: And if we can just pull up the transcript, please, to see his evidence. He says:
“It was astonishing. It’s almost as if no one was really checking. It was very early when, when I’d just started at the Inspectorate and we’d just assumed that going in there and writing the initial report that we’d written, saying that for goodness sake, you know, there are ways of doing this in a more creative – we know it’s difficult but there are ways of doing this more creatively. And it was just really astonishing that monitors, leaders, the Youth Custody Service, none of these people had picked it up.”
And what he’s referring to here about “doing it more creatively” is the scheme by which newly arrived children were placed in isolation for 14 days, and only allowed out of their cells for 30 minutes.
What I want to explore with you is, can you provide us with any insight as to why the Inspectorate’s concerns after that visit went unheeded?
Ms Lucy KC: What’s the period that he’s talking about where they’ve gone unheeded?
Counsel Inquiry: He’s talking about the October visit, they go and they notice that children are being held for 14 days, only allowed out of their cells for 30 minutes at a time. And he’s asked why no one had picked it up, and he said it was astonishing and so I wanted –
Ms Lucy KC: It didn’t come to my attention, as I said, until November, and when he personally raised it with me, the Lord Chancellor said he was dealing with it. I do have a recollection of some conversations that I had with Dr Farrar but I can’t a hundred per cent recollect when exactly they were but I’m very happy to share them with you. And I haven’t found any documentary evidence which bears any of what I’m about to say out, but I can tell you what I think I recollect, if that would be helpful.
Counsel Inquiry: Please do.
Ms Lucy KC: So I think the position was that – so Rainsbrook was a private prison, a private institution, and the way that that’s monitored is that there are people from HMPPS who monitor it. And I think Dr Farrar was under the impression that those people had got a little bit too close to – so, first of all, Rainsbrook – MTC did not accept – my understanding was that MTC did not accept that there were issues at Rainsbrook. And secondly, the HMPPS people who were meant to be monitoring it were a little bit too close to the management at Rainsbrook.
So that’s all I recall of possibly why the issues hadn’t been resolved earlier.
Counsel Inquiry: I see. Well, you became involved, I think you became involved once the urgent notification –
Ms Lucy KC: Yeah.
Counsel Inquiry: – or more heavily involved, if I can put it that way.
Ms Lucy KC: Yeah.
Counsel Inquiry: And what action did you take once you received the urgent notification?
Ms Lucy KC: So I – remember the Lord Chancellor is dealing with it. So I asked to speak to the CEO of MTC to find out what was happening, and then a statutory – once the urgent notification is made, a statutory process kicks in and what happens is that HMPPS put a number of proposals as to how improvements need to be made, they put that. So I had updates from Dr Farrar as to whether MTC were complying with those requirements and from memory, my understanding is that they were, and I left in March, and I think things evolved after that, as well.
Counsel Inquiry: I see. Do you accept that there is a general failure of oversight of HMPPS as regards Rainsbrook Secure Training Centre?
Ms Lucy KC: I would just repeat what I’ve said on this particular occasion. I think Dr Farrar had thought that HMPPS had got the – the HMPPS staff hadn’t picked up some of the issues and Rainsbrook wasn’t taking responsibility for the errors that it was making.
Counsel Inquiry: But you, and of course the Lord Chancellor have that oversight role over HMPPS –
Ms Lucy KC: Mm.
Counsel Inquiry: – so some of the responsibility, of course, lies with you and, ultimately, the Lord Chancellor?
Ms Lucy KC: Yes. And as soon as the urgent notification was issued, a process was followed which ultimately led to MTC losing its contract.
You have to remember that it’s a contract, so there are – we can’t just step in and immediately take over. You know, there are consequences of shutting down an institution or there are legal consequences of taking away a contract. So we had to go through some procedures in order to make sure that we gave MTC the chance to prove that it could operate the institution.
And as it transpired, it didn’t come up to those standards that we required of it.
But I wasn’t involved. I left the office the following March, early March, I think the 2nd.
Counsel Inquiry: At the beginning of your evidence you accepted that the youth estate wasn’t functioning as it should and that was one of the reasons why. As I understand it, you were exploring in your time in office moving to a system of secure schools, for example.
Did the urgent notification being triggered at Rainsbrook, was that – did that help inform your thinking – (overspeaking) –
Ms Lucy KC: No, I believed the secure schools are the way forward in order to rehabilitate young people who have committed crimes, and that’s why I was pursuing policy of secure schools.
Counsel Inquiry: Did you draw any conclusions or any lessons from the urgent notification which was issued at Rainsbrook?
Ms Lucy KC: What do you mean by lessons?
Counsel Inquiry: Well, any lessons to be learned for the future management of the secure estate?
Ms Lucy KC: I’m afraid it’s – I don’t have all the details to hand of what they – obviously they weren’t operating as they should, particularly in relation to how I think they received people in during the pandemic. Obviously that was wrong and wasn’t – it wasn’t happening at different institutions, and I hope that – I’m sure HMPPS took those matters on board in relation to making sure other institutions were operating fully and appropriately.
Counsel Inquiry: Did you draw from that experience that there was also not just a failure within Rainsbrook and the company that operated it, but a failure of oversight from HMPPS?
Ms Lucy KC: I don’t have any more to add to what I’ve already said.
Counsel Inquiry: Okay.
I’m going to ask you now about the early release provisions, which were brought into force at an early stage in the pandemic to reduce the prison population.
I think you deal with it at paragraph 130 of your witness statement, the reasons for the scheme. If we could just bring that up, please.
Yes, page 32, paragraph 130.
Ms Lucy KC: I mean, just coming back to Rainsbrook, because I’m just reflecting, like you said. I don’t think you – I think the problem lay with MTC. I don’t think you can say it was all HMPPS’s fault. The problem lay with them. But of course HMPPS had a duty also to oversight.
I just wanted to add that.
Counsel Inquiry: Yes, I think –
Ms Lucy KC: It wasn’t a public institution.
Counsel Inquiry: Yes, I think we can agree on that. It’s not that there’s no fault with MTC, but that HMPPS also has a role to play –
Ms Lucy KC: Sure, of course.
Counsel Inquiry: – in oversight.
So moving on now to the early release scheme. So in your statement you deal with the scheme. You say:
“The key reasons for early release were to reduce the population in order to allow single cell occupancy for isolation and to release clinically vulnerable prisoners. We all recognised the need for decisions on release to be based on scientific evidence. In a note from the Lord Chancellor’s private office following a meeting on 21 March … which I and the Lord Chancellor attended, it is recorded that: ‘[The Lord Chancellor] asked for work to start identifying the vulnerable cohorts and the practical steps we would need to release them. He also wanted clear scientific rationale for who we would be releasing’.”
We’ve already seen the evidence – the briefing, pardon me, from PHE, from Dr O’Moore, setting out the need for – to reduce overcrowding in the estate and to have single-cell occupancy to reduce the risks of infection in prisons.
We can take that down now.
In the end, it’s right, isn’t it, that no children were released under the early release – (overspeaking) –
Ms Lucy KC: That’s correct.
Counsel Inquiry: But adults were released?
Ms Lucy KC: Some adults were released.
Counsel Inquiry: Some – yes, not all. But some adults were released?
Ms Lucy KC: Yeah.
Counsel Inquiry: Okay.
And would you agree with me that the reason that children weren’t released, they had the same eligibility criteria as the adults, but in the end children weren’t released because, of course, they were held in single-cell accommodation anyway, there was sufficient headroom within the youth custody estate to absorb any additional demand on bed spaces, and there weren’t many children who were clinically vulnerable? So the real goals for the early release scheme didn’t apply to children in the same way as they applied to adults; would you agree with me?
Ms Lucy KC: Those were definitely factors, but if I could outline why I think no children were released in a bit more detail.
So, first of all, we only released people who hadn’t committed serious offences. And, as you quite rightly stated, we had under 800 young people in the estate. Some of those, therefore – you only get – go to prison if you’re a young person if you’ve committed a very serious offence or you’re a persistent offender. So there was a reason why those people were in the institution and therefore there’s a reason why they probably weren’t eligible under the scheme.
And the second reason is – and this is a really important reason and I’m not sure it comes out sufficiently – is that, as ministers, we had a duty to protect the public. And we’d be having a very different inquiry right now if we had released someone, child or adult, and they had gone on to commit a serious crime. And as a – I was responsible for probation as well as for prisons, and during my time as the minister for probation, the parole board had released somebody and they had gone on to commit a very serious crime and there was an inquiry – an investigation as to why we had allowed that person – why the Parole Board had allowed that person to be released.
So releasing someone when you’re a minister has a number of issues you have to consider, and protecting the public is a significant one.
And the other one that you haven’t mentioned that’s relevant is where – in order for – to release a child, particularly a child, you have to make sure that they’re going to be protected when they go into the community. And if you think about – I’m sure you’ve heard evidence of the state of education, the state of social care, the state of looked-after children during the course of this Inquiry, and we were very conscious that we would be releasing people potentially to places where they would have no education, they’d have no healthcare, they’d have no mental health support, and they possibly wouldn’t have the appropriate home in the community.
So it’s not just it’s great to release people because then they’re free, you’ve got to think about also what is the scenario which they then face.
Counsel Inquiry: So you would agree that the extent to which children were released was hampered by a lack of availability and capacity to find them suitable homes in the community?
Lady Hallett: That was one factor.
Ms Pottle: One factor.
Ms Lucy KC: So it’s one factor – and actually you don’t get to that question. That question is later on.
So the first question is: what’s the level of offence and protection of the public? And then there’s: do we actually need to release? I mean, you remember there was a lot of pushback from Number 10 not to release anybody at all. I pushed very hard, very hard, to persuade the Prime Minister to allow us to release people in the interests public health. That’s why we were releasing people. We were releasing people in the interests of public health, not because it was difficult in prisons but because they might contract coronavirus.
And as you rightly said, Ms Pottle, there wasn’t that issue in the youth estate, (a) children were less affected by the virus and (b) they had single cells anyway. So there wasn’t the impetus to release people but still there was a scheme available and then we got on to, well, if they’ve satisfied all the criteria, is it appropriate to release them?
And then we look at that next factor, which is: where will they go? Is there a place to go?
Counsel Inquiry: Yes, I see.
The Children’s Commissioner had written to you on 25 March calling for the release of children in order to protect their rights during the pandemic.
Ms Lucy KC: Sure.
Counsel Inquiry: So not as a sort of infection control measure, I think –
Ms Lucy KC: Yeah.
Counsel Inquiry: – in order to ensure that they weren’t adversely affected by drops in staffing levels, for example, or no visits, or a drop in their time out of their rooms. And all of those things, of course, came to pass.
But the reason, I suppose, that no children were released, is that the criteria were designed – and they’re the same eligibility criteria for children as adults – and they were designed to release offenders who wouldn’t pose a risk to the public, and they were designed to avoid, you know, deaths in custody, which was really more of a problem for adults than for children; is that correct?
Ms Lucy KC: Yes, I set out the criteria why we considered them and I think they were the appropriate criteria.
Counsel Inquiry: You don’t think that it was appropriate to have different criteria for children –
Ms Lucy KC: Well, we did –
Counsel Inquiry: If I can just ask –
Ms Lucy KC: – (overspeaking) – we did have the same –
Counsel Inquiry: I just need to ask the question.
Ms Lucy KC: Of course.
Counsel Inquiry: You didn’t think it was appropriate to have different criteria for children so that they could be released in order to protect them from the poor regime in the children’s secure estate?
Ms Lucy KC: So you’ll see if you look through the subs that during the course of discussing this, the Lord Chancellor specifically said, “I think we should consider children separately”. There’s a sub where the HMPPS say, “We are looking at children separately”. So we did think about should there be a different regime for children? And we concluded – I think HMPPS advised us, in the interests of public protection, but anyway, the advice was that we shouldn’t have a separate regime. But that’s not to say we didn’t consider it.
I’d really like to get over, because I know a lot of people have given evidence about, and are disappointed with the outcomes of the decisions we might have made but I would really like to get over that I cared deeply about young people, the Lord Chancellor cared deeply about young people, and Dr Farrar cared deeply about young – and we were all on the same page about the importance of young people, and at every single stage in the course of our considerations and decisions, we considered young people.
Now, people might not be happy with the outcome, the decision that we actually came to, because in the end it ended up being the same as adults, but that’s not to say we didn’t consider it at the outset. So –
Counsel Inquiry: Okay.
Ms Lucy KC: – the Lord Chancellor had specifically said, “Can we consider whether we have a different position for young people”, and in the end we didn’t.
Counsel Inquiry: I’d like to pull up, please –
Ms Lucy KC: But, for the fact, that each person was considered on a case-by-case basis.
Counsel Inquiry: Okay. I’d like to pull up, please, a document which was a briefing given to you as the scheme progressed and it became clear that no children were being released, and the document is INQ000567552.
So this is from Colin Allars, from the Youth Justice Board, to you and he’s providing a briefing on the impact of Covid on the youth justice sector, and if we can scroll, please, to page 3, it’s secure estate, and he gives an update as to – thank you – difficulties in the secure estate.
And at the bottom paragraph he says:
“Although the numbers of children in the secure estate has been reducing, the [Youth Justice Board] has been working to support the [Ministry of Justice] and the Youth Custody Service to further reduce the numbers … in custody. We have worked with [Youth Custody Service] to advise on their arrangements for the Emergency … Temporary Release … by providing specific support and guidance on ensuring the safety and suitability of [children’s] release arrangements … We have also worked to resolve issues around communication with a child on release and transportation. You will know that there are currently 9 children scope for release in the next 100 days … It is disappointing that more children are not in scope for release and that no children have been released to date.”
If we turn over the page, he says:
“We would recommend reviewing the criteria being applied to children under [the scheme] to develop a set of criteria, particularly for children, rather than overlaying the criteria for adults.”
So you were being advised by your officials that, you know, no children were being released, you were aware of that, and that you should consider developing specific criteria for children and a decision was taken, I presume, not to do that?
Ms Lucy KC: So the YJB – you describe Colin Allars and the YJB as an official – I wouldn’t – I mean, HMPPS are the main agency responsible for youth custody estate, and we took advice from them, and I have said we did think about whether there should be a specific regime. We’d already considered whether there should be the same criteria for young children and for a variety of reasons we decided that there shouldn’t be.
I did press HMPPS on a number of occasions as to why more people were not coming through the system. I was really disappointed, because I had expended political capital on getting this regime through Number 10, and we’d really said, “We need to release people”. We impressed on them that we needed to do it in order to manage the estate properly, and very few numbers were coming through. So on a number of occasions I said to Dr Farrar, and I think I say at one stage, “This scheme is being operated too leisurely”.
So I was pressing for people who were within the criteria to come through. And no one came to me.
I did the – my office – in preparing for this, we did look at why – I keep saying “my office”, of course they’re not my office – they’re the – officials have looked at why the individuals who did satisfy the criteria, why they did not come through. And there were individual reasons for each one. Like they were being released anyway, on different types of scheme, because their time was up or they weren’t suitable for various high-risk reasons.
Counsel Inquiry: Yes.
In your witness statement you say:
[As read] “On reflection, a custodial sentence is a matter of last resort and so the seriousness of the offence might have excluded them from release.”
But that is a matter which could have been appreciated at the time of the eligibility criteria being drawn up –
Ms Lucy KC: Well, we did consider it at the time and that’s why there were so few children within scope.
Counsel Inquiry: And so the priority was not to release children in order to improve their conditions in custody?
Ms Lucy KC: No, the priority was to release people in order to free up space.
The advice we’d been given by – the reason we were doing this was because Dr O’Moore had advised that in order to operate the prison system, for health reasons, we needed to release significant numbers of people.
Counsel Inquiry: Ms Frazer, one final question from me.
Taking a step back from all the issues that we’ve covered this afternoon, the use of the same criteria for adults and children in the early release provisions, applying the same operational guidance on social distancing to children in custody, for example, would you agree that, being 1% of the prison population, children’s specific needs and vulnerabilities were not given sufficient consideration by you during the pandemic?
Ms Lucy KC: No. I would not agree with that. At each stage when we made a decision, we thought about the particular cohorts within our estate very carefully, because we all cared about children. And we thought about them. We didn’t always make a differential decision, but we certainly considered it.
Ms Pottle: Thank you very much.
I have no further questions.
Lady Hallett: Thank you, Ms Pottle.
Ms Jichi, who is over there.
Questions From Ms Jichi
Ms Jichi: Ms Frazer, I’m asking questions on behalf of Children’s Rights Organisations.
I want to ask how the MoJ monitored the impact of restrictions on children in custody during the pandemic when independent oversight was suspended in March 2020.
In your statement at paragraph 263 you note that the MoJ received data on time out of cells, and you told us today in your evidence that it was a really critical measure.
In July 2020, the data showed the lowest mid-week average per day was YOI Cookham Wood, with 2.3 hours, and the highest was Rainsbrook, with an average of 6.5 hours out of room across June. However, as we’ve heard, Ofsted found during their independent monitoring visit to Rainsbrook in October 2020 that children were still being locked in their cells for 23.5 hours a day, prompting an urgent notification in December 2020.
This was akin to solitary confinement and is very different from the 6.5 hours out of cell time that was reported to you in June.
Did you raise concerns with anyone, for example with Ofsted, that while some oversight was maintained of young offender institutes in the form of short scrutiny visits, there was no oversight of secure training centres at all for six months. And in the absence of that independent oversight, did you take any steps to ensure the information you received was accurate, for example by speaking to children directly?
Ms Lucy KC: Thank you very much for your question, and on a very important subject about monitoring.
I encouraged any monitoring – I was keen to have any information come my way so that I could fulfil my job as effectively as possible as prisons minister. So if any of the institutions who were responsible for monitoring prisons wanted to continue to monitor their prisons, I encouraged and supported it.
So, for example, Her Majesty’s prisons inspectorate asked to continue to monitor. HMPPS were a little bit nervous about that considering the burden that it placed on them, but I said that it needed to continue to take place. The IMB continued to monitor prisons.
The Children’s Commissioner Asked for evidence. When she asked for evidence, I made it available to her.
I tried to speak to people on the ground. So, as I’ve mentioned during the course of my evidence, I spoke to the prison governors of the youth estate, and indeed prisoners – governors of other prisons as well. And I tried to collect data as well and tried to encourage HMPPS to collect data.
So we’ve heard about –
Ms Jichi: Ms Frazer, I’m sorry for interrupting, but specifically on secure training centres, you were aware that there was no independent oversight of those for almost six months. Did you take any steps to ensure that the information you were receiving on such an important measure, that you recognised yourself, was correct?
Ms Lucy KC: So it’s for the institutions to decide, because they have the duty of care to their staff, how they were going to manage the pandemic. If Ofsted had said to me they wanted to continue to go into institutions, I would have been in favour of it.
I did meet the – Amanda Spielman of Ofsted to discuss their inspection of the institutions.
Ms Jichi: Moving – turning now, please, Ms Frazer, to considering all the restrictions on children in custody, including lack of meaningful access –
Lady Hallett: Can you go closer to the microphone? I can’t – it’s probably my age and hearing.
Ms Jichi: Apologies, my Lady.
Lady Hallett: Thank you.
Ms Jichi: Turning now to all restrictions on children in custody, including having no meaningful access to education and stopping of visits, how frequently was the impact and proportionality of placing children under such severe restrictions reviewed? And what steps were taken to ensure children were treated in a way that recognised their distinct needs and vulnerabilities?
Ms Lucy KC: So we constant – you know, each institution – the framework that we set out allowed for a discretion for each institution to manage the pandemic in the way that it saw fit. And so they had a discretion to change what they were doing in accordance to what they thought ought to be happening on the ground.
We also had the level – the – we had a framework which set out a number of levels, and if an institution felt that it could go to the next level and decrease restrictions, there was a gold command procedure to enable it to do that.
And so there was provision to enable people to adapt as circumstances changed.
Lady Hallett: Thank you very much, Ms Jichi.
Ms Jichi: Thank you, my Lady.
Lady Hallett: Mr Gardner, I’ve given you permission for a question but looking at it I’m not quite sure where it’s going, but see if you can make it clear to me and see if Ms Frazer can understand.
Mr Gardner: I am very grateful, my Lady.
Questions From Mr Gardner
Mr Gardner: Ms Frazer, I represent the Children’s Commissioner for Wales. You’ll be aware that in Wales youth justice policy is not a devolved matter but public health is a devolved matter.
Now, this Inquiry has heard evidence from Charlie Taylor already that suggests that during the pandemic, YOI Parc, for example, managed to work effectively with Public Health Wales and produced, in his view, a much better situation than the YOIs in England.
Now, conversely, the Children’s Commissioner for Wales has had to work with Hillside Secure Children’s Home to deal with problems that she experienced, including a difficulty in understanding the guidance that they should follow, in struggling to obtain testing kits because of a lack of clarity over which body should be providing them, and in practices of lengthy isolation periods.
Now, with that varied background, may I ask for your views on how public health guidance coming from Welsh institutions but prison policy coming from the UK Government had an impact on both the formulation of MoJ policy and your views on the wider impact on children and young persons in secure estate in Wales?
Ms Lucy KC: I think it’s difficult to extrapolate from two particular institutions the entirety of policy, and children’s – secure children’s homes were the – were not my responsibility. So it’s difficult for me to comment on the question you raise.
I mean, just in relation to Parc, I saw what Charlie Taylor said about it, and this is only speculation on my part, but I do think that Parc operated well before the pandemic, and therefore operated well after – during the pandemic and indeed after the pandemic. I went to see it. It’s a very good institution. And in addition, because it’s a private institution, it was managed – its education providers were – both its staff and its education providers were both provided by G4S and I think that was why it did so well, and I think it also probably underlines that it wasn’t the guidance, they didn’t have the same problems with the unions.
Mr Gardner: Yes. If I may just very briefly follow up, my Lady, very briefly?
Lady Hallett: It better be brief.
Mr Gardner: Of course, I’m very grateful, my Lady.
In which case that’s operational and I understand the difference there. In terms of the formulation of policy, so you had a lot of consultation with Public Health England; did Public Health Wales ever become involved?
Ms Lucy KC: Well, as you say, health was a devolved matter, and I’m sure that Éamonn O’Moore liaised with – well, I’m not sure, I hope Éamonn O’Moore liaised with Public Health Wales. He was my main contact.
Mr Gardner: I’m grateful, my Lady.
Lady Hallett: Thank you, Mr Gardner.
Ms Pottle, I think that completes the questions for Ms Frazer.
Ms Pottle: Yes.
Lady Hallett: Sorry, anything more for this witness?
Ms Pottle: No, thank you.
Lady Hallett: Thank you very much indeed for your help, Ms Frazer. That completes all the questions we have for you.
The Witness: Thank you very much.
Lady Hallett: I’m tempted to ask whether life in the private sector is better or worse than in public, but I won’t do that, but thank you for your help.
The Witness: Thank you very much. Thank you for all your time on this very important issue.
Lady Hallett: Thank you.
Ms Pottle.
Ms Pottle: My Lady, that completes the oral evidence for week 3 of Module 8. With your permission, we will also adduce into evidence a number of witness statements relevant to the evidence you’ve heard this week on education, social care, health and youth justice. These include statements from UK Government departments, inspectorates, and qualifications bodies, public health organisations, as well as a number of charities and non-governmental organisations.
These will shortly be published on the Inquiry’s website. Thank you.
Lady Hallett: Thank you very much indeed, Ms Pottle, and that includes the statement from Éamonn O’Moore, about whom Ms Frazer has been speaking.
Thank you very much. I shall sit again at 10.30 on Monday, 20 October. Thank you.
(3.46 pm)
(The hearing adjourned until 10.30 am on Monday, 20 October 2025)