9. Submission by Ms Gallagher, KC

Ms Gallagher: My Lady, as you know, I represent the Trades Union Congress, the TUC, along with my colleague Mr Jacobs, instructed by Thompsons. We have made detailed written submissions in advance. We are mindful that you and your counsel have seen those considered them before today’s hearing and so many of the points I don’t need to deal with orally.

In addition, my Lady, we stand by our submissions made in previous modules concerning the centrality of effective representation and effective participation for Core Participants, a topic on which we and the four bereaved family groups, in particular, have repeatedly made submissions in prior modules in one voice albeit with our many varied accents.

I intend to address the following four points today including responding to points made by counsel to the Inquiry this morning in her opening where necessary.

Number 1, I intend to introduce the TUC’s role and interest in this module and set the context for our submissions.

Second, I’m going to return briefly to that issue of effective participation but also early participation. I can take this shortly because we strongly support the submissions made this morning by Ms Munroe concerning the vital importance of effective participation of Core Participants. We’ve got some short supplementary further points to make under that head.

Third, and this will be a longer topic, and it arises from oral submissions this morning, we want to deal with matters that are said to have a broader reach than Module 3 and, my Lady, it’s a response to counsel to the Inquiry’s submissions this morning regarding why she counsels against you investigating in this module two specific matters which she says have a far broader reach than this module or indeed the terms of reference for this Inquiry and so should not be the subject of specific investigation here. They are (a) structural racism and (b) recruitment/retention issues concerning healthcare staff.

We’re very grateful to counsel to the Inquiry for the work that they’ve done and the position they have taken on many issues. This topic, I’m afraid, is one on which we take issue with CTI’s reasoning. We urge you to adopt a different approach. We say they are two vitally important issues. They must be at the heart of what you do in Module 3.

Fourth, very briefly, my Lady, we’ve got some specific additional matters concerning scope for this module which does include the relevance of pre-pandemic and post pandemic matters and both of which we say are not excluded from your terms of reference and indeed are vital to fulfilling your statutory role.

On post pandemic matters, I can take this briefly because we agree with Mr Wagner’s point. We were going to make it, he has made it and made it did very well this morning – or this afternoon, regarding post pandemic matters being of vital importance to your recommendation power.

So first, my Lady, the TUC’s role and interest. The TUC brings together 5.5 million working people who make up its 48 member unions across all parts of the UK. They span a wide range of industries profoundly affected by the Covid-19 pandemic. But it’s 11 of the TUC’s affiliated unions, representing collectively many hundreds of thousands of members, who have a particular interest in this module. I know you have them from paragraph 8 of our written submissions, my Lady, but given the importance of open justice and the importance to those unions, I name them here. They are:

The Royal College of Midwives, representing over 50,000 midwives, student midwives and maternity support workers and you will know from our written submissions that indeed we echo many of the submissions made by Mr Wagner for the groups he represents today.

We also include the Chartered Society of Physiotherapy, representing over 63,000 physiotherapists, support workers and students.

The Hospital Consultants and Specialists Association, the UK’s only professional association and trade union focused solely on hospital doctors, representing over 3,000 members.

The Society of Radiographers.

Unison, a general union whose representation includes a very broad range of medical, clinical, administrative and support staff in the healthcare sector and the NHS.

Unite, similarly a general union with large representation of a broad range of people working in the healthcare sector.

The GMB, a general union representing over 35,000 members across the NHS and ambulance services across the UK, a broad range of other medical related staff.

The British Dietetic Association, representing 10,000 dietitians and support workers.

The Royal College of Podiatry, representing over 50,000 NHS and other chiropodists and podiatrists.

The British Orthoptic Society Trade Union, representing orthoptists.

And the Prison Officers Association, representing staff in secure psychiatric settings, who of course we must not forget when considering healthcare.

Now as that list makes abundantly clear, the TUC and its affiliated unions include a very wide range of healthcare workers who worked in the sector during the pandemic, from consultants to hospital porters, midwives to patient transport service drivers. Those hundreds of thousands of people who are represented by those 11 affiliated unions to the TUC were on the front line. Hundreds of them, as you have heard from Ms Carey this morning, died whilst working during the pandemic, with a disproportionate and devastating toll upon healthcare workers from a black minority ethnic background, including many migrant workers on whom the NHS depends.

Many more healthcare workers contracted Covid-19 at rates far in excess of those in the general population. Once infected, the statistics show us that they experienced severe infection, again at a rate far in excess of the general population. Many suffered debilitating and long-term effects of Long Covid, having contracted Covid in an unsafe workplace, and all have worked in extremely stressful and traumatic conditions, experiencing the loss of their own loved ones, family members and colleagues.

Often, indeed we believe the evidence will show in the vast majority of cases, those workers were exposed to risk of infection with inadequate provision of PPE or other workplace mitigations.

The reality on the ground for healthcare workers, my Lady, and the persisting reality of workers being expected to shoulder unacceptable risk during the pandemic, contrasts sharply with the public mood at the time and, indeed, performative actions from Government ministers at the time. You will recall that Government ministers joined millions of members of the public standing on their door steps every Thursday night at 8pm banging pots and pans to show our united public affection for those in the NHS and carers saving lives.

The UK showed its appreciation in highly visible ways, rainbow pictures in windows, public buildings being lit up in the blue of the NHS. Boris Johnson, then Prime Minister, stated on his hospital release that the NHS was, and I quote, “powered by love”. And in April 2020 Matt Hancock, then Secretary of State for Health and Social Care, announced that critical care workers during Covid-19 who had put their lives on the line would be issued with a blue badge to mark their commitment and to show the Government’s gratitude.

But in reality, healthcare key workers were seeing, every day, fundamental failings by their employers and by the Government placing them at serious risk. Within weeks of the first lockdown it was widely known that healthcare staff had inadequate PPE, were having to risk their own lives, their loved one’s lives and their patients’ lives in flimsy paper masks and inadequate plastic aprons.

Doctors and nurses we knew within weeks were having to source their own PPE, buying it from B&Q, adapting sports equipment, relying on local charities. One doctor reported to the Times in March 2020 that she had been coughed on all day by an extremely ill Covid-19 patient whilst not wearing a visor or any other protective covering and she said she had to borrow and adapt her 9-year old’s safety specs that she got in a science birthday party bag.

The reality is that many of those rightly lauded key workers died because their own employers, their own Government failed in its most basic duty to protect them. The cheers, the clapping, the pots and pans and the blue badge can’t drown out that terrible truth and, indeed, the meagreness of the blue badge gesture, in a context where the NHS had, by the start of the pandemic, been subject to a decade of austerity policies, is at the heart of the TUC’s concerns in this module.

That’s indeed why academics professor, Professor Helen Wood, and Beverley Skeggs as early as April 2020 called for a move from care gratitude to care justice. They said, within weeks of the pandemic starting, the irony of a Government that voted against a pay rise for nurses numerous times, most recently in 2017, and that withdrew nursing bursaries while charging nursing students £9,000 a year in tuition fees, leading to a drastic reduction in nurse applications, now declaring their love for the NHS and very publicly applauding it, is not lost on us.

That mismatch for the TUC is at the heart of their work in this module and also at the heart of the TUC’s work is the grossly disparate impact in terms of race for healthcare workers, an issue on which we appreciate we have considerable impact with a number of the other CPs.

My Lady, may I give you one statistic at the outset and then I will move on to the other points.

Of the 1.2 million people employed by the NHS, 20.7 belong to black, Asian or minority ethnic background. About one fifth. Yet analysis conducted as early as April 2020 showed that of the 119 NHS staff known to have died in the pandemic by that time, 64 per cent were from a BAME background, more than two thirds. It’s critical that when the next pandemic arrives, the healthcare sector is better equipped to transform the numbered of deaths downwards, minimise the many challenges and traumas of providing healthcare through a pandemic. We say at the outset that cannot be done unless those two key underpinning systemic issues, the undervaluing of healthcare workers (including retention and recruitment strategies) and structural racism, are at the heart of the Inquiry’s work, otherwise Module 3 cannot do its job and will not be fit for purpose.

The second point I can take very quickly, on effective participation and early participation. We agree with the submissions made by others. We commend to you in particular the submissions made by Ms Munroe this morning and Mr Burton. We say effective participation must mean early participation at a time that can make a difference to the direction of travel of this module.

We noted a reference today to the next phase of the Inquiry being revealed in the summer, and it sounds to us as if that may coincide with the substantive hearings in Module 1 commencing in relation to preparedness. We urge again – I appreciate, my Lady, you have heard our submissions on this and we are conscious on what you said after our submissions at the end of the Module 1 hearing most recently. We appreciate that the Inquiry’s thinking is evolving. We ask that we are part of that process rather than having a fait accompli at a stage when the preparedness module is already starting.

We’re all subject to the confidentiality undertaking. We ask that we’re brought within the Inquiry’s circle of trust and we can contribute to their thinking in its development phase rather than hearing about it later.

We also under this heading – and I am very grateful to Ms Carey for indicating that there will indeed be a hearing later in 2023. You have seen our submissions at paragraph 20. We’re grateful for that indication because it is a vital importance that distilling and developing the list of key issues for this module includes Core Participants, and we think autumn 2023 is a sensible time given the timeline for disclosure.

My Lady, our third point on broader issues. This is the one issue on which we take issue with Ms Carey’s approach this morning. So on both systemic racism and recruitment retention, our understanding of the submission made to you this morning by Ms Carey was essentially: these are both broader issues than the pandemic only and so should not be looked at here.

In our submission, that is not persuasive. The fact that those issues run broader than Module 3 and indeed run broader than your terms of reference is not a reason to disregard them. Now, of course, we’re not asking you to conduct a role which steps on the toes of others, who would look at much of the detail, for example, about the precision of nurses’ pay, for example, but those issues must be on the table and, in particular in relation to structural racism, it’s essential in our view that we do have expert input.

On structural racism, the answer in essence, as we understand it, was: we’re aware of this, it’s running through everything we’re doing, we don’t need to have an expert. But being aware of the impact and those devastating figures, of which we heard from Ms Munroe earlier, some of the figures which I have just given you, being aware of the impact, the differential outcome, doesn’t mean understanding the why and the only way in which we can understand the why is to engage with the substantial academic expert work which has been undertaken on those issues and, we say, cost effectively and resource effectively to engage an expert to deal with those issues.

Our submission is that the argument to the contrary is not persuasive. Similarly on recruitment and retention, it’s essential that we look at those issues. We’re in a position where just last week the TUC had evidence that one in three healthcare workers is actively considering leaving their role because they feel undervalued. There’s evidence very recently from the TUC that hundreds of thousands of NHS workers have lost at least a year’s worth of salary as a result of their pay not keeping pace with inflation since 2010. That includes, for example, midwives suffering a cumulative pay real terms loss of £48,000 since 2010, equivalent to 14 months’ worth of salary. We don’t expect those issues to be delved into in a way that the National Audit Office or another body would, but it is, we say, not going to be feasible to proceed with Module 3 if you are not looking at those realities, about what was fuelling recruitment and retention crisis across the NHS, and, indeed, when we had those deaths, what was then done about filling those gaps.

Fourth point concerns scope.

We recognise that the provisional scope document is high level; specific issues will crystallise and be developed at a later stage. We just make some short points. At first we’ve proposed one modest but, we say, important amendment to the provisional scope outline. We didn’t hear a response to that earlier from Ms Carey, not quite as optimistic as Mr Wagner that that means it’s definitely included, because when reference was made to this sentence it wasn’t referred to. It just is the addition of two words, my Lady, as follows, in paragraph 10, the reference to “deaths caused by the Covid-19 pandemic in terms of the numbers, classification and recording of deaths” be amended to instead read “deaths caused by the Covid-19 pandemic in terms of the numbers, classification, recording and investigation of deaths”.

We want to avoid a situation where the key issue about regulatory and investigative responses to reported deaths at the time, which raises Article 2 and, indeed, Article 3 ECHR issues, that that’s not overlooked. So it’s two additional words, and we suggest it be included.

That doesn’t prevent you having the Lewis type function later of deciding that actually applying the funnel approach. This is not an issue you will look at in detail for the hearing. But we suggest in the high level document it should be included.

Second, we support Mr Wagner relating to antenatal and postnatal care. You have our written submissions on that.

Third, in our written submissions we’ve raised concerns about paragraph 34 and we echo Mr Burton’s submissions just now. That’s the reference, save where necessary, to understand how the pandemic impacted on healthcare systems. Because that’s such a critical issue.

Finally, in relation to scope you have our submissions in writing which we echo again, that it refers already in the provisional outline of scope document to issues such as staffing levels and critical care capacity, availability of healthcare staff. That must require direct evidence as to the state of healthcare systems at the time and it must involve looking at some of the underlying issues concerning recruitment and retention as raised by the RCN.

Now, those structural and funding deficiencies in the healthcare sector impacted severely upon the resilience of healthcare services. The perspective of our unions is that these sorts of issues are central to understanding how the pandemic impacted on healthcare systems and also it’s going to be a vital importance to recommendations.

We’re very mindful, my Lady, of the fact that recommendations and early recommendations are at the heart of what you wish to do. We consider this issue must be at the heart of Module 3.

Unless I can assist further, my Lady, those are our submissions.

Lady Hallett: Thank you very much indeed, Ms Gallagher. I will bear in mind very much indeed, obviously, the submissions you have made, and I continue to review previous submissions that you have made as well. Thank you.

Ms Morris, please.

I apologise to all those who merit the initials KC after their name, I haven’t been using them. I should have done. Partly I’m not used to it yet. Still in the QC mode.