7. Opening Statement by Ms Gallagher

Ms Gallagher: My Lady, as you know, I act for the Trades Union Congress (the TUC) along with Mr Jacobs, and instructed by Thompsons Solicitors. May we start by saying how grateful we are to be a Core Participant in this vitally important module and, as the TUC has made clear in its engagement prior to the official commencement of this Inquiry and since your opening statement in July, we seek to bring forward the experience and expertise of the TUC members and the TUC member unions, for the benefit of this important Inquiry.

We intend to do that to the extent we can through the life of the Inquiry and, of course, also we wish to protect the interests of our members and member unions. I’m conscious you have detail in the written materials before you about the TUC, but I just want to start by saying something brief for those who are watching us in the room and online about that.

The TUC brings together 5.5 million working people who make up its 48 member unions, from all parts of the UK, from all four countries. Each of those 48 member unions is listed as an annex to the submissions we have given you and, as that list makes clear, my Lady, they span a very wide range of industries profoundly affected by the Covid-19 pandemic, including many front-line roles.

Mr Keith King’s Counsel to the Inquiry referenced in his opening remarks today the vast swathes of human and social activity which were curtailed, halted or impacted by the Covid-19 pandemic and the official response to it and, if you look at the list that he gave and you look at the 48 member unions, you see a very substantial overlap because the remit is breathtakingly broad.

It includes, by way of example only, midwives, workers in food industries, headteachers, teachers, lecturers, those working in adult education, probation, prison and family court staff, workers in social care, manufacturing, nurseries, coalmining, the voluntary sector, aviation and a great many more.

It also includes groups such as freelance artists, journalists, bus drivers, call centre workers, civil servants, a huge range, and to use Mr Keith’s phrase, it’s vast swathes of human and social activity reflected in the TUC’s work.

Critically, my Lady, thousands of people of working age died in the pandemic, many of whom were key workers in high-risk workplaces, in sectors such as health, social care, transport, food processing and textiles, and a great many of whom were TUC members.

Workers from ethnic minorities were particularly hard hit, as you will hear through this Inquiry, with, on the statistics we have available, BME men 57 per cent more likely to be working in jobs with a high mortality rate, BME women 48 per cent more likely to be working in jobs with a higher mortality rate and, indeed, that echoes Mr Weatherby’s submissions a little earlier on behalf of the bereaved families in his group.

Many thousands of TUC members died as a result of the Covid-19 pandemic, tens of thousands continue to suffer the effects of long Covid and pandemic-related workplace injury, and many more are bereaved, many have suffered hardship of loss in a myriad of ways.

I did want to quote what the TUC General Secretary Francis O’Grady said in April of this year in a joint statement released with the Covid Bereaved Families for Justice on Workers’ Memorial Day. That of course was before the Inquiry’s Terms of Reference were finalised. She said:

“We’ll forever be in the debt of the workers who kept the country going during the pandemic: nurses, carers, bus drivers, factory workers and so many more. Far too many were exposed to the virus at work and lost their lives as a consequence. Now the governments owe it to them and to their families to make sure the public Inquiry investigates what should have been done to keep everyone safe at work.”

Since that time of course the Terms of Reference have been finalised and the baton has been passed from the Government to you and your team, my Lady, and echoing those words from the general secretary in April, we say now the Inquiry owes it to them and their families to ensure that the Inquiry investigates what should have been done to keep everyone safe at work and what should be done in future, and we’re very grateful for the clear and robust recognition in your opening statement of July and again in your words today of the vital importance of learning as swiftly as possible if anything could or should have been done to prevent or reduce that suffering and those failures.

We were struck, my Lady, by the fact that, at the outset of today’s hearing, you indicated that there’s one word that sums up the pandemic for so many and that word is: loss.

For the TUC, TUC members and member unions, we wholeheartedly agree. For many of our members we would use two words – avoidable loss. Losses which may have been avoided had the UK been prepared and ready in early 2020, and losses which may be avoidable in future if lessons are learned and learned swiftly and the right lessons are learned.

That’s why we’ve made clear in our written submissions that we agree entirely that Module 1 is a vital and urgent topic which cannot wait. You raise a pressing question in the scope for Module 1: was the UK prepared for a pandemic or, indeed, for another form of civil emergency? This is a vitally important issue. It must be considered as soon as possible, and that’s precisely why we agree with your commitment to timeliness, and we agree with and endorse, in your opening remarks today, the reference to the importance of timeliness and striking a balance between timeliness and the extent to which you are able to explore each and every single issue within the very broad scope of the Terms of Reference.

But equally, my Lady, we agree entirely with the point you made in your written opening statement in July 2022 at page 8, where you said:

“Given the breadth of my investigations, this will not be completed as quickly as some might like. I make no apology for that. I’m determined to ensure that the Inquiry has access to the evidence it needs and has the time to analyse that evidence properly before witnesses appear in front of me.”

In the submissions we make today, we bear very much in mind those driving factors that you identified today and you identified in July 2022. It’s precisely because of your clear commitment, which we welcome, to timeliness, to avoiding unnecessary delay, but also to ensuring that you have the right evidence before you before embarking on public hearings that we respectfully request on three topics that you adopt the approach proposed by the TUC and the Bereaved Families, and respectfully we request that you do take a slightly different approach to that proposed by your counsel this morning.

Those three topics are: disclosure of Rule 9 requests; disclosure of letters of instruction to experts; and disclosure more generally and the test or approach to apply. I’ll take those in turn.

So starting firstly, my Lady, with Rule 9 requests, we agree with Mr Weatherby, King’s Counsel, that Rule 9 requests should be disclosed to Core Participants. Now, in the submissions made by Mr Keith, King’s Counsel, this morning he said you are neither required by the rules nor is it established by past practice. He also used the phrase that it would “serve no purpose”, and he made reference to practical difficulties given the iterative process.

May I summarise our submissions under two headings, one principle, and one practicality. In relation to principle, my Lady, the TUC welcomed in our April 2022 consultation response the principles you set out in your open letter announcing that consultation process. There was a clear and very welcome commitment to transparency and to inclusiveness. We recognise of course that Mr Keith is correct that Rule 9 requests are not mandated to be automatically disclosed by the rules but, in exercising your discretion, we say the transparency which you have been committed to from the outset is a key factor to bear in mind. The rules are essentially neutral. There’s no mandatory requirement to disclose. There’s also no barrier to disclose. As a matter of principle we say you should disclose.

Other inquiries have taken that step, and chairs when exercising their discretion have delayed Rule 9 requests. By way of example, familiar to many of your team, Rule 9 requests were disclosed in a number of the independent Inquiry into Child Sex Abuse modules. So we ask you to exercise your discretion to disclose as a matter of principle and, indeed, we say that that would be in keeping with another phrase used by Mr Keith this morning when he referred to having “an open, indeed eager, frame of mind.” So for transparency reasons in principle we ask that they be disclosed.

Secondly, practicality. Our submission is that it would be efficient and time saving to disclose the Rule 9 requests and to do so early. We noted Mr Keith’s words this morning referring to the Rule 9 requests already made being described as lengthy, complex and wide-ranging. We assume, as they are lengthy complex and wide-ranging, it is likely to take some time for the resulting witness statements to come back to you and to your team. The advantage of CPs having early sight of those Rule 9 requests is we can feed in, we can identify if there are gaps, we can suggest additional queries or clarifications on the ambitious timetable you have set out. We have under seven months to the start of May. We can see that preparation of these witness statements may make some months. We do not want to be in a position where we hit spring 2023 and we start to receive statements which make clear that there was a blind spot or a gap.

We want to avoid that. The reference to the iterative process that was made earlier seems to us not to be a point against us, it’s a point in favour of disclosure. It’s precisely why the Rule 9 request can be disclosed and we can go back. We make that submission without doubting in any way the diligence and expertise of your solicitor team and your counsel team. But necessarily there will be information unavailable to them which is available to Core Participants, given their background and their expertise.

The TUC, for example, the British Medical Association, the Local Government Association, may have information unknown to your legal team. If I can adopt a phrase from Donald Rumsfeld there will be unknown unknowns. They simply won’t know what gaps there are in their knowledge, and what we want to avoid is a situation where we get close to the May hearing, we receive statements, we can see there are gaps in them, and we then have a last-minute scramble, which seems to us to cut against your commitment to timeliness and to trying to ensure that the timetable is adhered to.

A good example of a collaborative approach with the disclosure of Rule 9 requests came in Mr Keith’s welcome words this morning referring to the Health & Safety Executive. That’s not about disclosure of the Rule 9 request itself, but it is an example of where the TUC has raised a concern, and we’re very grateful for the indication this morning that our suggestion that a Rule 9 request be made to the Health & Safety Executive is now under consideration.

You will have seen your submissions on that point at paragraph 25 in particular. Taken shortly, this is an issue of vital importance to the TUC. It’s intimately linked to sub-topic 2 in your provisional scope document, Risk Management. The TUC for over a decade since 2010 has been raising grave concerns that systematic underfunding of vital services, including safety regulators, places the UK at risk and, as you have seen, the TUC’s view is that the UK’s pandemic preparedness was gravely undermined by a number of historical changes to risk management structures and bodies and, in addition, by substantial cuts to their budgets.

You have seen your submission that funding cuts to the HSE and local authority enforcement since 2010 seriously hindered the regulator’s ability to effectively prevent workplace hazards, deter employers from breaching regulations and the law and, put simply, the TUC, as set out our submissions, say the effects of cuts to funding resulted in fewer inspectors, few inspections, much less enforcement action prior to the pandemic, gravely therefore weakened the resilience and preparedness of risk management structures.

That’s an example where we were able to give a reference to the HSE which didn’t appear in your early list and it’s now under consideration. But a similar principle would apply with disclosure of Rule 9 requests where there simply may be unknown gaps which we and other Core Participants may be able to fill.

The second topic is disclosure of letters of instruction to experts. We were grateful to hear and we welcome the fact that today counsel to the Inquiry confirmed that those instructions will indeed be provided to Core Participants before the reports are finalised, so we welcome that.

We simply raise a timing point. The earlier those letters or instructions can be provided to Core Participants, the earlier Core Participants can identify any gaps or any additional issues and return to you, again seeking to avoid a last minute scramble assuming that the reports will take some time to prepare.

In some other inquiries we have seen a situation where you get the report and the letter of instruction disclosed at the same time or often three or four weeks before the hearing, and that doesn’t assist anyone. It seems to us, if they are going to be disclosed, the earlier they can be disclosed the better, particularly in circumstances where the TUC, the Bereaved Families and many other groups are collectives who have large numbers of people who they represent, their representative voices. So the more time we can have the better.

We entirely hear and understand the point Mr Keith made at the end of his submissions earlier in relation to notice, where he said, “We’ll give you as much as possible”, but time is against us and there’s a huge amount to be done.

But the letters of instruction to experts is a good example of where earlier disclosure will avoid problems for everyone. It’s accepted in principle they are going to be disclosed. The sooner we can see them the better.

The third point is about disclosure more generally. Now we dealt with this in our written submissions at paragraphs 29 to 30, and the TUC is also in agreement with the written submissions made by the Covid-19 Bereaved Families for Justice and the Northern Ireland Covid-19 Bereaved Families for Justice and, indeed, with Mr Weatherby’s oral submissions today.

The concern which we share with Mr Weatherby is that the reference at paragraph 50 of counsel to the Inquiry’s note to proportionate and focused disclosure is unclear to us, and it appears to be a recipe for potential arbitrariness in decision-making, particularly when you have a very large team.

We understand Mr Keith’s point, given the scope of the issues you are dealing with here, adopting his phrase “it’s neither necessary nor proportionate for the Inquiry to disclose every document that it receives” and, just to ensure there’s no straw men here, we’re not proposing that; we agree. Our primary position, in keeping with Mr Weatherby, is that the test should be relevance; relevant documents should be disclosed to Core Participants. We accept there needs to be a sift for relevancy, but that’s not the test that’s suggested at paragraph 50 of Counsel to the Inquiry’s note.

We agree that irrelevant documents or duplicated documents don’t need to be disclosed. But our position is “relevancy” should be the watch word. That should be the test.

There is of course an alternative potential compromise which we raised in our written submissions, if you are against us on a relevancy test, and that this idea of a schedule of undisclosed, equivalent of schedule of unused. The question put to us this morning by Mr Keith was: to what end? It’s for the Inquiry to determine whether further areas are required to be investigated. He said it was an immense amount of the further work to little end. But again we say: give the Core Participants some credit. The Core Participants may well spot in a schedule of undisclosed or a schedule of unused a key point unknown to your Inquiry team. Again, we don’t say that to raise any concern about the diligence or excellence of your legal team. We say that because the Core Participants, by virtue of having become Core Participants, are adding value to your process, have particular expertise, have got a significant interest or have played a significant role in the issues. They know matters which simply may be unknown to your team, and we say there is a good end and, again, there’s of course also a good end in principle when we go back to the very first point that I made a little earlier about transparency and openness and collaboration.

Against that backdrop, we do ask that you consider adopting a more open and transparent approach to disclosure, ideally the approach proposed by Mr Weatherby, but there is a compromise alternative which we say is better than what is proposed at paragraph 50 about which we have concerns.

We do need to have a safety net so that Core Participants can review, see if there may have been a matter overlooked and make submissions to you, and then of course it will be a matter for you ultimately as to whether or not that material should be disclosed. We cannot make those submissions if these decisions are made entirely behind closed doors.

We’ve indicated in our written submissions that those forms of schedules have worked well in other inquiries and large scale inquests; for example, they were used in the Hillsborough Inquest to good end.

There’s a number of small additional issues I wish to pick up. I won’t repeat all the points in our written submissions and we’re grateful for the indication from you, my Lady, and from Mr Keith this morning that a number of matters raised in our written submissions have now been resolved or have fallen away. We’re grateful for that.

Before I move to three short points we want to address at the end, the TUC also wishes to support the submissions made in relation to the devolved nations by Mr Weatherby, King’s Counsel, Mr Lavery, King’s Counsel, Ms Mitchell, King’s Counsel, and Ms Heaven this morning but there’s three short matters we want to highlight now drawing on our written submissions. One is specifically about Module 1, my Lady, and two are more general.

Mr Keith: I don’t wish to interrupt but I am just wondering whether my Lady wished to –

Ms Gallagher: I see the time.

Lady Hallett: I was wondering about whether or not we need to break.

Mr Keith: That might be advisable and then we can look forward to hearing the remainder of Ms Gallagher’s submissions after.

Lady Hallett: I’m sorry we’ve interrupted –

Ms Gallagher: I’m very happy to do that. I’m so sorry. I didn’t see the time.

Lady Hallett: It also saves you having to rush through it because we obviously are meant to be taking a break for the stenographer transcribers anyway. We haven’t really decided how long to have for a break. Does anybody have any thoughts as to – I’m happy to come back whenever anybody wants me to but I want people to have enough time to –

Mr Keith: Could my Lady indicate 2.00? That’s just short of an hour and that’s the customary amount of time, isn’t it?

Lady Hallett: Very well. So thank you, Ms Gallagher, if you then finish your submissions this afternoon and also I think we’ve got two others, Ms Henke and Ms Spearing, who want to speak and then I’ll hear whether Mr Keith has any submissions by way of reply.

So thank you very much indeed and we’ll see you this afternoon. 2.00, please.

(1.06 pm)

(Luncheon Adjournment)

(2.00 pm)

Lady Hallett: Next I think we have Ms Henke, Ruth Henke. Oh, Ms Gallagher, I’m so sorry. How could I do that to you. I do apologise.

Ms Gallagher: Thank you, my Lady. If I could start by just apologising to the stenographer for overrunning my time a little early, it does mean this morning I have made myself deeply unpopular by going into lunchtime over the sound of growling stomachs, which I didn’t hear; I’ve quoted Donald Rumsfeld, the US Secretary of Defence former; and, for once, I was the Irish person in the room who was not complaining about the pronunciation of my name. So quite a few firsts.

There’s two short supplementary points arising from the disclosure submissions I made, before I turn to just some final comments on behalf of the TUC. When we referred to the schedule of undisclosed, I’m just asked to make two short supplementary points on that.

The first is of course that all Core Participants have signed the confidentiality undertakings and are entirely committed to your process and to the confidentiality of your process, and the second is that the TUC’s submission is that this should not be a vast amount of extra work, as internally a sift for relevancy will of course have been undertaken, those engaged in document review necessarily won’t be operating in a vacuum and will be giving some form of summary internally to your team about the decision they have made or what the document is.

Now, we say that not under-estimating the significant and onerous task being undertaken by Counsel to the Inquiry and Solicitor to the Inquiry. We recognise that any additional task does add to that burden. But, in our submission, the balance currently as described in paragraph 50, a proportionate and focused test applied by the Inquiry’s legal team without more and without oversight, is striking the balance wrongly and this would be an appropriate alternative.

I mentioned just before lunch that we had three short final matters. I’m afraid given lunchtime it’s now five, but they are brief. So the first is in respect of Module 1, and the public hearings. We share the concern raised by Mr Weatherby earlier about the four-week time estimate. You will have seen this in our written submissions at paragraph 34. Our view is that four weeks for this module seems exceptionally tight, particularly given those six detailed sub-topics in the provisional scope outline. So, with each of those topics and with opening and closing statements, you would be left within the region of three days per topic, and we think that, recognising you don’t need to cover absolutely everything in the public hearing, but that tends, we would say, towards the superficial and is too short.

We also bear in mind the important nuanced submissions that have been made before you by a number of Core Participants today about the differential position of the devolved nations. Just by way of example, in respect of Northern Ireland, you’ve had powerful submissions made today about the differential position in relation to health and social care, the amalgamated health and social care system, there not being an NHS as such answered so on, and it’s very difficult to see how in one of those sub-topics, where Northern Ireland is so very different, you could possibly in three days examine that issue.

So our submission is that four weeks is extremely tight, and we agree entirely with the importance of getting on with it and having this module listed quickly, but our submission is that four weeks is too short.

We welcomed the indication this morning that that’s under review. We don’t press you on any particular time-frame, nor could we sensibly pre-disclosure and in circumstances where we’ve heard additional submissions today which give us pause for thought. But we suggest that it would be appropriate to have an early recognition that, whatever the correct length of time is, four weeks is too short, and we suggest it will be much easier to block time in diaries and then shorten it than to try to do the other, and to try to shoehorn in an additional four, eight or whatever number of weeks it is at a time when diaries have become busy.

So we suggest that that should be dealt with quickly and the nettle should be grasped.

The second point that we wanted to make concerns a matter raised by Mr Bermingham this morning. Mr Bermingham this morning raised a concern for the ADHP about not being able to notify people about Core Participant status, and the TUC supports Mr Bermingham’s submissions on that important point and needing to keep Core Participant status secret for a long period of time, save for those who’s signed the confidentiality undertaking. That’s a practically important point for representative bodies like the TUC, like the ADHP which have stakeholders and members that they need to update. So we echo and support his submissions.

Third point is about location of the hearings. We’ve dealt with that in our written submissions at paragraph 11 to 14. I won’t raise all the points but, just in headline, the TUC welcomes the decision to avoid the Inquiry being exclusively England-centric given its UK-wide remit.

We note the intention is for public hearings in Modules 2A, 2B and 2C to take place in Scotland, Wales and Northern Ireland respectively, and we welcome that commitment.

We just at this stage note that it may be for certain later Modules that the TUC may wish to invite you, my Lady, to consider sitting outside London for at least part of public hearings, even when there isn’t a specific issue about devolved Government. So by way of example, in an impact module it may be appropriate to proceed on the basis that London is not the assumption, and that in fact an impact module could sensibly take place in whole or in part in another part of the UK.

We raised a particular concern in our written submissions about England itself. The TUC may – and we put it no higher than this at this stage, but given that the issue was raised in the outline submissions and this is your first hearing, we thought it sensible to put down a marker – the TUC may later wish to request that you consider sitting for at least part of the public hearings in a later module in another English city other than London.

We can’t make the submission firmly at this stage; it we’ll of course depend when we see the later Modules. We raise it because there are certain sectors which were significantly adversely affected by the pandemic in which workers faced increased risk of loss of life and other hardships which are centred in the north of England, and there are also particular issues arising, which we’ll come to much later in this Inquiry, about the failure speedily to respond to developments in London, which could have saved lives in northern England, in Northern Ireland and elsewhere in the UK.

Against that context, in circumstances where you recognise rightly the symbolic importance of this being a UK-wide Inquiry, we think it must not be London-centric. The norm should not be London, and we may wish to address you on that at a later stage.

Fourth point, is about identification of future modules. We’re conscious from paragraph 24 of Mr Keith and counsel to the Inquiry’s note that there is will later be some systems modules and some impact modules. We don’t yet know the precise shape, and of course we recognise that, even when you tell us more about the shape, it may necessarily change. This is an iterative process; as evidence comes in you may need to add modules so on.

We do think in contrast to some other inquiries which have proceeded in a modular way where the initial list of modules was given earlier, we think the fact that the initial list of Modules is not public is likely to cause some problems. We just give two examples.

First, you may have Core Participants or putative Core Participants applying for Modules which are not the most relevant to them and, if they had the full list, they may be able to make a different decision. We’re conscious that a number of those who applied were told, “Well, you may want to wait and apply for a later module.” But, if they knew what the later Modules were that were coming, they may be less likely to make an application early which you think is better placed at a later stage. We’re mindful of the fact you had 130 applications and that of course adds to the onerous task that your legal team is undertaking. Secondly, it would assist with us being able as Core Participants to make focused and targeted scope submissions. By way of one very small example, an indication was given in Mr Weatherby’s submissions on behalf of the Bereaved Families about places of detention. It may well be that you think places of detention is going to be considered in a later module, Module 1 is not the place for it. At the moment we simply don’t know. So it means we’re having to make submissions a little in the dark because we don’t know the later intended shape, and we think it would assist all of us if we could have the intended shape public earlier, and we hope that that would also take some pressure from your team. So we raise that in a constructive way, we hope.

The fifth point that we want to raise and the final one concerns the issue of balance, and we do echo some submissions made by Mr Bermingham for the Association of Directors of Public Health this morning on this point. We dealt with this in writing at paragraphs 15 to 19 of our written submissions and I take it shortly. You will be aware that the TUC and the British Medical Association were originally refused Core Participant status in this module and the original list of 26 Core Participants was very heavily weighted towards officialdom, towards august public bodies. Of 26 Core Participants originally granted that status there were the four Bereaved Family groups, there was Imperial College, and others were all public bodies in some shape or form. That’s over 80 per cent. We recognise of course, and we do not question in any way, those that have been granted Core Participant status here. We’re very grateful for the recreation given to the TUC and indeed also to the BMA. At this stage we simply raise a concern that going forward we’re in the foothills of this Inquiry now that early stages. Non-officialdom, non-governmental bodies, non-public bodies, have a real and valuable role to play, and I hope we as the TUC can show you that in Module 1 and going forward.

We raise this simply because we are concerned that decision-making which tends to lean towards Government will mean essentially that you have a skewed process, and that’s not something which you want, it’s not something which we want, and we raise it here against the backdrop of us having originally been refused, a decision which we’re very grateful to have had overturned.

We’re now here, and we wish to play a collaborative and constructive role in the Inquiry. But we also wish to ensure that other nonofficial voices going forward are given appropriate weight and Core Participant status where appropriate.

Against that backdrop, we understood from the initial decision that it may perhaps have been thought that the TUC was an Impact module-type Core Participant. I hope it’s now clear that we’re also a Systems module-type Core Participant, and there will be other non-governmental, non-public body organisations which have valuable evidence to give you in relation to systems, but who will also be able to play a valuable role as a Core Participant, including the right to make submissions to shape the provisional scope outline itself, having access to the disclosure, being able to test the evidence of institutional witnesses and indeed suggesting lines of enquiry.

Against that backdrop, my Lady, they are our submissions.

Lady Hallett: Thank you very much indeed. All extremely constructive, and I am very grateful to you both for your written and oral submissions. A number of the issues you have raised have caused me particular concern, so I can assure you that I am very receptive to some of them. I don’t know whether I can reflect all your submissions in my decisions, but I will consider them very carefully.

Ms Gallagher: Very grateful. Thank you.

Lady Hallett: Having called on Ms Henke prematurely, is she around?