3. Submissions on Behalf of the Trades Union Congress by Mr Jacobs

Mr Jacobs: Good afternoon, my Lady. I appear for the Trades Union Congress, the TUC.

The TUC brings together 5.5 million working people who make up its 48 member unions from all parts of the UK. Part of the TUC is the Wales TUC, which represents affiliated membership in Wales. The Welsh TUC, as it describes itself, exists to improve the economic and social conditions of workers in Wales, regardless of whether or not they are in employment, and the Welsh TUC is the voice of Wales at work.

My Lady, as you are aware, the TUC has been designated as a core participant in Modules 1, 2 and also 2A to C, and you have heard from the TUC yesterday and this morning.

This morning, in Module 2A I, addressed you on four issues. First, the provision of early information to core participants on the focus of the Inquiry’s investigations, including by way of disclosure of Rule 9 requests, the early provision of a list of issues, and instructions to experts.

Second, issues of scope, and in particular the role of evidence of impact on Module 2.

Third, to whom Rule 9 requests should be made.

And, fourth, the suggestion of strand-tying closing submissions after the Module 2 and 2A to C hearings have concluded.

My Lady, those are procedural issues which apply, we say, with equal force across the modules. I’m not going to repeat them verbatim. What I propose to do is, really for the record and so there is visibility in this particular module, to re-state them briefly, and there are also some points of nuance related to Wales.

In relation to the first issue, then, the provision of early information to core participants on the focus of the Inquiry’s investigations.

The scope of each module has been set out in very broad terms only. Mr Poole this afternoon described it as no more than a generic guide. The Inquiry has been perfectly frank that it simply cannot investigate every issue and every event that might conceivably fall within the identified scope, and indeed in your opening remarks this afternoon you reiterated that the Inquiry cannot cover every issue or call every witness and the Inquiry is going to have to focus on the most significant and the most important decisions.

That is all undeniably correct but it begs the question: what are the most significant and the most important decisions?

What appears to be envisaged by the Inquiry is producing a list of issues and sharing that with core participants when it is nearing the end of the evidence gathering process. That appears to us to inevitably mean it will be at a relatively late stage and close to substantive hearings.

The two concerns I set out this morning with that approach are, first, that a core participant may only learn that a particular issue has not been investigated when it is too late, when the substantive hearing is so close that the gap in evidence gathering cannot be filled without jeopardising the hearing date.

The second concern is that it is an opportunity lost for the Inquiry to benefit from the experience and expertise of those bodies and groups designated as core participants.

The TUC and, it appears, many core participants, certainly, in other modules, believe that we can help the Inquiry to take an informed and robust approach to its investigations and evidence gathering.

My Lady, I addressed some of the points of nuance, and in particular what was said by Mr Keith King’s Counsel yesterday, and I don’t propose to do so again. But in short, within the identified scope there are crucially important and difficult questions about which issues the Inquiry is actually going to investigate, and we say that core participants need to have an opportunity to engage in that process, and it can be achieved by disclosure of Rule 9s and/or an early list of issues.

My Lady, turning to the second issue, issues of scope, and in particular the role of evidence of impact on Module 2.

The impact of Covid and necessarily the impact of government decision-making is going to take place in significant part in later modules. The two issues of government decision-making and the impact of Covid are, it appears to us, inevitably entwined.

It does also appear to us that each of the Module 2 modules will need at least some evidence as to the impact of decision-making. That is because, firstly, it is necessary to have an understanding of what the relevant considerations and disparate foreseeable impacts were in order to assess whether they were adequately taken into account.

Second, one important issue in assessing the reasonableness and timeliness of government decision-making is whether and how the observable impacts of government decisions fed into the evolution of the government’s response to the pandemic.

An assessment of the political and administrative decision-making cannot be divorced, we say, from its context, and neither should it be assumed that we know enough of the context to proceed without evidence.

My Lady, we do accept and recognise that you cannot hear all evidence as to the impact of decision-making in Module 2. What we say is that you must have enough evidence as to impact so that the issues falling within Module 2 have some context. It can be achieved, we say, with carefully targeted Rule 9 requests. And perhaps, my Lady, targeted Rule 9 requests of representative and expert bodies such as the TUC but also many others can give the Inquiry sufficient understanding of the impact of government decision-making and public health messaging so as to give the context that I have described.

My Lady, the third issue is to whom Rule 9 requests should be made. Wales TUC is grateful to have received a Rule 9 request and the opportunity to give evidence to this Inquiry. We also say that Rule 9 requests should be made of those professional bodies that played a significant role in cascading and adapting national public health communications into workplaces. And, as with Module 2A, we envisage writing to you in short order with some constructive suggestions to that effect.

The TUC also notes that there are certain entities which have core participant status in one of the devolved modules, but their equivalents do not. So one example is that the Children’s Commissioner for Wales is a core participant in this module but her equivalents in England, Scotland and Northern Ireland are not. Similarly, in Module 2C the Commissioner for Older People for Northern Ireland is a core participant, whereas the same role in other devolved nations are not.

Whilst, of course, whether or not to apply for core participant status is a matter for individuals and organisations, and there is no difficulty with that at all, it does seem sensible to us to consider at an early stage whether at least to make Rule 9 requests of equivalent entities in other jurisdictions in order to maximise the opportunity for comparing and contrasting differing approaches across the UK.

Fourthly, and finally, we have already suggested utilising a sort of strand-tying closing submission in 2024, a short two-day hearing at which submissions can be made taking a coherent and informed view of the evidence across Modules 2, 2A, 2B and 2C.

My Lady, one challenge of the modular approach is how it is to form a coherent whole. Our suggestion, we think, will go some way to achieving that.

Given the daunting task of the Inquiry, it may feel early to consider these issues. There are many bridges to cross before a two-day hearing in 2024. But, we say the earlier this is considered, the better. The Inquiry and the core participants need to have a plan and think proactively as to how the comparisons and lessons between the UK and devolved nations are going to be achieved in practice.

My Lady, unless I can assist further.

Lady Hallett: No, thank you very much, Mr Jacobs.

I mean, as you, I suspect, appreciated from what you have said, in relation to the core participants, I could only appoint core participants from those who applied, and I was trying very hard to make sure I had the right level of representation of various interest groups across the different modules, but I think your suggestion of the Rule 9 requests may be a way of coping with the problem in another way as well.

Thank you very much indeed.

Mr Jacobs: Thank you.

Lady Hallett: Right, now Mr Rhodri Williams KC.