10. Submissions by Ms Gallagher KC

Ms Gallagher: Thank you, my Lady.

My Lady, I assume that the remarks in relation to funding apply also to the TUC?

Baroness Hallett: I’m afraid so, Ms Gallagher, I was about to say it. I appreciate that you understand that I have to maintain the same process if I’m going to ensure fairness to all.

Ms Gallagher: I’m grateful. I will return to that very, very briefly at the end. But I won’t make the submissions I intended to make in light of the indication that has been given.

Baroness Hallett: Thank you.

Ms Gallagher: So, my Lady, may I start by addressing the remarks that you made at the outset today regarding certain commentators who are publicly suggesting that this Inquiry may be a decade long whitewash and establishment cover-up.

I suspect, my Lady, that those who are professing to have so little faith in this Inquiry, or indeed in you as its chair, may not be familiar with your work or your record. I am one of the advocates in the virtual room today who of course acted in the 7/7 London bombings inquest. It was neither a decade long nor a whitewash nor an establishment cover-up. Quite the contrary. And I suspect anyone who has appeared before you over the years, my Lady, would simply not recognise the characterisation that those words suggest.

That suggestion also appears to be made without awareness of the legal framework governing independent inquiries or, indeed, the commitments you have made from the outset, in your opening statement in July 2022, that you will undertake and conclude the work of this inquiry as speedily as possible so that lessons are learned before another pandemic strikes.

At the outset, on behalf of the TUC, we say that we do not share the concern of those commentators expressed in that way. Nor, frankly, do we recognise the implicit slur. We of course have confidence, my Lady, that you will conduct, as you have been, the Inquiry impartially and openly, in accordance with your statutory obligation to do so.

We, of course, may not always agree. On occasion we may take issue with or challenge your decisions. But there’s simply no basis to the notion that you would countenance presiding over a whitewash or cover-up, and the TUC wish to put that on record in light of your remarks in opening today.

I return, if I may, to the TUC’s touchstone of the three As, which we referred to at the October hearing, my Lady: a desire for answers, accountability and above all for action, so that lessons are learned from what happened during this pandemic, and lives, livelihoods and safety are protected.

From the earliest stages of this Inquiry process, including prior to the completion of the terms of reference, we have understood that we share those aims with you in this process, my Lady. We also share your desire to proceed as quickly as possible whilst ensuring the Inquiry is effective, including interim reports and interim recommendations where merited.

Importantly, we know, although some commentators may not, that submissions made by Mr Keith KC today, or by Ms Carey KC, yesterday, or indeed by any other member of your counsel or solicitor team, although made by your team are not determinative of your decision-making. Rather, the decision-maker is you, my Lady. You are perfectly entitled to reject advice given to you or submissions made to you by your Inquiry team. And where there is a dispute between CTI and Core Participants, you may, on occasion, prefer the submission of Core Participants.

Now, you may have noticed two twin themes in our recent written and oral submissions, including the submissions for today, with us both requesting earlier disclosure of the Inquiry’s developing thinking on future direction of travel of the Inquiry as a whole and within specific modules, and also requesting earlier preliminary hearings at a time when Core Participants can still influence the direction of travel.

Those requests are made precisely because we know your mind is not closed, you are open to taking a different course to that proposed by your own team where Core Participants persuade you otherwise.

Hearings such as today are an opportunity to test and challenge, where appropriate, views taken by your own team behind the scenes, as well as performing a multiplicity of other important functions, including updating and informing Core Participants and the wider public, as Mr Keith has done today, and to correct any public misconceptions in the way you and Mr Keith have done at the outset of today’s hearings.

The former US Supreme Court Justice Louis Brandeis once famously claimed that sunlight is said to be the best disinfectant, and this is one situation in which we consider that phrase to hold true. Exposing the Inquiry team’s developing thinking to the scrutiny of Core Participants, who can then make informed submissions to you as to whether they agree or disagree or urge an alternative approach, whether they have identified any gaps, and ensuring transparency to Core Participants and the wider public, these are all critical to public confidence in the Inquiry.

That’s a running theme through the submissions we have heard so far today but it also reflects submissions made yesterday, including by Mr Beer KC for NHS England, as well as by the TUC on multiple occasions, Bereaved Families and others.

Against that backdrop, my Lady, we note with gratitude Mr Keith’s indication this morning that the TUC’s suggestion of an additional preliminary hearing in summer for this module is a sensible one. We propose a May 2023 hearing for the reasons set out in our written submissions at paragraphs 23 and 24, as if the next hearing was in September, weeks before the proposed start date, there would be no meaningful opportunity for Core Participants to address you with adequate time to influence the direction of travel or this module, without adequate time to fill any gaps.

We are pleased to hear this suggestion has been heeded. We are grateful for that.

We agree with Ms Twite that this should be earlier than July, not only for the reasons she gives but also because, in the TUC’s submission, ideally this will take place prior to the Module 1 final hearings commencing so that there is timely clarity where there are currently, and we accept understandably, unclear lines as between Module 1 and Module 2. That is why we continue to request this takes place in May.

My Lady, the TUC also wishes to emphasise that we are very grateful to your Module 2 Inquiry team for the extremely helpful note provided in advance of this hearing. It’s given us significant detail on a range of matters. Annex A is hugely helpful to us and other Core Participants. Mr Smith’s annex B, the note on the listening exercise and commemoration, is very much appreciated by those I represent.

The TUC welcomes the approach taken by your team in this module and we ask that a similar approach be taken where possible in other modules. Finally in this vein, my Lady, we also note that the Inquiry has heeded the request made by the TUC in respect of a Rule 9 request for the HSE, and we are grateful for that.

Now, my Lady, we’ve made written submissions, which I appreciate you’ve well in mind. I am conscious I’m coming tenth in today’s very long running order. I’m mindful of the time.

Those two factors mean that, on a number of topics, we simply endorse and adopt the submissions of others. We don’t need to make supplemental submissions, or we rely upon our written submissions and don’t need to develop them in any detail orally.

In particular, my Lady, we agree with Mr Friedman KC on reasonable adjustments, and indeed the submissions made on this yesterday by Mr Burton KC, Mr Metzer KC and Mr Wagner in Module 3.

On Rule 9 requests, we stand by our written submissions and we endorse in particular the submissions made by Ms Morris, soon to be formally appointed King’s Counsel later this month. And were I in court in person, the TUC would of course be noting this and extending congratulations to her, so I hope you will forgive me taking the liberty of doing so in this online forum too, my Lady.

Baroness Hallett: Not at all, Ms Gallagher. I’m sorry, I didn’t know. I wish to record my congratulations to her as well.

Ms Gallagher: Thank you.

On both the shock of and the apparent relevance of the WhatsApp revelations overnight concerning Matt Hancock, we echo Ms Morris and Mr McCaffrey in particular this morning, and we agree with Mr McCaffrey’s submissions regarding the urgent need to clarify the extent to which Mr Hancock, and indeed other central Government ministers, have complied with their disclosure obligations.

On Rule 10 issues we agree with and support Ms Morris and Mr Friedman on their submissions today.

Disclosure and timeliness of disclosure, we have nothing to add to our written submissions.

On scope, in respect of the particular position in respect of Northern Ireland and the dividing line between Module 1 and Module 2 on the one hand, Module 2 and Module 2C on the other, please see, my Lady, our written submissions at paragraphs 11 to 16. The short point is that Northern Ireland is in a unique position because from January 2017 to January 2020 there was no functioning executive at all in Northern Ireland. It was governed in essence by civil servants in a caretaker capacity and the central Government, UK Government in Westminster, had particular obligations, as there was no functioning executive. And we remain unclear on the dividing line between Module 1, 2 and 2C.

We agree Government and support Ms Campbell KC’s submissions this morning and their joint written submissions by the Covid and Bereaved Families for Justice and the Northern Ireland group on these matters.

Now, it seems from the submissions made by Mr Keith this morning that there may not be a firm view on precisely when and where all these issues will be dealt with, and we understand that given the stage you are at with information gathering and the Rule 9 process. We ask to be kept updated and informed and to have the opportunity to address you in good time when further information has been obtained and a provisional view has been formed, and that supports are called for the next preliminary hearing to be prior to Module 1 final hearings starting.

In respect of Long Covid, my Lady, we agree with Mr Metzer KC’s submissions regarding Long Covid being a Governmental blind spot throughout and, indeed, since the pandemic. This is a key area of work for the TUC. Filling gaps in official provision.

Whilst I don’t address that in detail now, I flag it as a critical issue on which the TUC has been undertaking detailed work for some time and an area in which there are key questions for you, my Lady, regarding the need for recommendations for change, including why Long Covid is not recognised as an occupational disease or as a disability. These are matters we address in our Rule 9 statement for this module, due to be filed tomorrow, and we will, particularly in light of Mr Metzer’s submissions today, alert your teams to other potential evidence that could be gathered.

In this respect, we note that, given the reference by Mr Keith to the EHRC this morning, this is an area in which the EHRC’s position has been controversial and the TUC and others have not agreed with it.

We also, my Lady, agree with and endorse Mr Friedman’s submissions regarding the Governmental blind spot in respect of disabled people and what he powerfully termed as “afterthought syndrome”. We commend in this respect to the Inquiry the June 2021 research report on disabled workers’ experiences during the pandemic, which addresses how, before the outbreak of the pandemic, disabled workers already faced huge barriers getting into and staying in work, including significant difficulties in accessing reasonable adjustments, despite this being a legal duty for employers, and how the pandemic greatly exacerbated the barriers disabled people face.

As you know, not only have disabled people been disproportionately affected in terms of loss of life but pre-existing workplace barriers were accentuated by the pandemic and additional workplace barriers arose, particularly with working from home, and the TUC’s work mid-pandemic was conducted to better understand how pre-existing workplace barriers were affected and those matters.

I flag this because we agree with and support Mr Friedman’s submissions regarding informational gaps and the inadequacy of data gathering processes. That’s an issue for disability. It is also extremely relevant to other matters including race. And indeed these gaps have lay in part behind the TUC’s work during the pandemic, filling gaps where Government was not going.

We also, in respect of international law, endorse Mr Friedman’s submissions about international law standards and the CRPD, and we also draw to your attention Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights, on the right to health.

In that respect we commended to your Module 3 team yesterday a very recent – hot off the presses – article from the Human Rights Law Review, by a number of academics, led by Judith Bueno de Mesquita and Claire Lougarre, Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic.

My Lady, that was rather a long summary of matters which I am not addressing in detail. There were three matters I intended to address you on. One of them is funding, which I will take very, very briefly at the end. I’m not making substantive submissions in light of the indication but I will address you briefly on next steps.

The two points I do wish to address you on are commemoration and experts, including the need for expertise in structural racism issues.

First, my Lady, on commemoration and Every Story Matters, we are grateful to Mr Smith, in writing, Mr Keith this morning, for the detailed update, and the TUC will engage further with your team regarding these issues.

Given timings, I raise one point now. Friday, 28 April 2023 is International Workers Memorial Day. Held on 28 April every year, this day brings together workers and their representatives from all around the world to “remember the dead and fight for the living”.

As you will know from our previous submissions, over 15,000 people of working age died in the pandemic, with a particularly devastating impact on people from the black and minority ethnic community. Many of them were key workers in high-risk workplaces, sectors such as health, social care, transport, food processing and textiles.

You may recall, my Lady, that last year, on 28 April 2022, the TUC and Covid Bereaved Families for Justice issued a joint release calling on the government not to stand in the way of your Inquiry, and to implement in full your recommendations for the terms of reference, at that stage in limbo. And also fundamentally reminding us all that the voices of key workers and the families of those who contracted the virus at work would be central to understanding what went wrong and learning lessons for the future.

Multiple events took place that day across the UK, including ICTU’s memorial event in Belfast, memorial events held by the STUC across Scotland, including at the workers memorials in Glasgow, Inverness, Paisley and elsewhere.

In 2021, similarly, multiple actions took place across all four nations of the UK, focused on workers who had lost their lives during the Covid pandemic and as a result of the Covid pandemic, including a minute’s silence at midday and a joint meeting at the Covid Memorial Wall in London with the unions and with the Covid Bereaved Families for Justice. Civic buildings lit in purple in memory of those who died as a result of the pandemic, and wrath laying in multiple locations, including the workers memorial in Leeds, and the Archbishop of York offering a message of condolence to families of workers who had died.

My Lady, we ask, given its imminence, that your team give thought to marking that day this year, 28 April, and we are happy to work further with your team behind the scenes in respect of that.

I raise it because it is clear the next hearing of this module won’t be before 28 April. That’s why I raise it now.

The next issue concerns experts, including the need for expertise in structural racism. My Lady, in respect of experts, we raised one procedural matter at paragraph 30 of our written submissions. I won’t take you to that orally. We don’t pursue it further today. We will address any specific proposals once made by your team. You have our concern.

But more fundamentally, this is a module about high level decision making by Government at multiple levels, national, devolved, regional. In this module in particular, we submit it is of vital importance that there is an understanding regarding pre-existing inequalities, structural discrimination, Government decision making from an early stage and throughout the pandemic, and whether due regard was paid to protected characteristics and intersectional issues, and also the differential impact of Covid upon multiple groups.

I say shortly, the TUC supports Ms Davies KC’s submission seeking an expert in respect of the protected characteristic of sex, and the particular position of women and girls.

And the TUC renews the request for an expert to address issues concerning structural racism matters.

Now, we addressed you in part on this topic in respect of Module 3 yesterday, my Lady. We don’t repeat those points. We return to it in light of further reflection, Mr Keith’s submissions this morning, and additional matters arising in respect of Module 2.

We support Ms Morrison’s powerful submissions on this issue today, and I don’t repeat any points she’s made. We agree with her.

We hear Mr Keith’s reassurance this morning that, in respect of race, far from being ignored, this runs like a steel wire throughout the Inquiry process. We appreciate this is not a silo issue. It relates to each and every single aspect of the Inquiry. It’s relevant to pre-existing healthcare inequalities, relevant to why certain people do certain types of jobs, relevant to the pattern of deaths, relevant to how decision makers gathered information about patterns of infection and how they responded to that information. And we say they often didn’t respond to that information because they hadn’t gathered it in the first place.

Now, you may recall our submissions at the 31 October hearing in this module regarding London bus drivers, the early pattern which emerged regarding risks to London bus drivers, and in particular to black male bus drivers – it is pages 142 to 144 of the transcript – and Mr Dayle’s powerful submissions that day regarding emerging patterns at a very early stage about the particular adverse impact upon healthcare workers from a BAME background. My Lady, we say these issues are relevant to a whole series of matters throughout the Inquiry, often intersectional. May I give one example today?

One example oft overlooked, as some academic experts on clinical ethics have recently noted, concerns PPE and the tendency for equipment to be designed based on a prototypical Caucasian male face and body shape. That derives in part from rules of regulatory approvals, a background in the construction industry, and the requirement to test the filtration efficiency of respirator masks using a standardised head form known as a Sheffield head. Now, whilst that provides a consistent basis for the quantitative evaluation of masks, it may also mean in particular that women and staff members of non-Caucasian ethnicities experienced poorly fitting PPE, and evidence was emerging from a very early stage to suggest that that was the case, picked up by a small number of academic, not picked up through official channels at that stage.

That’s a key example of where your Inquiry team, despite their due diligence and the huge amount of work that they are doing, an issue like this may simply not be in their radar, because it’s not in their wheelhouse, it’s not their expertise. It is not the expertise of lawyers, it is the expertise of others.

Now, Mr Keith gave us a number of answers this morning answering the charge that race is being ignored in this Inquiry, and we fully appreciate that it is not. Our issues are different. We are not seeking a report on systematic racism in general. It is not an abstract issue, as Ms Munroe put it yesterday, we’re seeking expert input in the particular context of individual modules focused on your terms of reference.

Now, a number of points. First, Mr Keith this morning appeared to suggest that as, ultimately, questions concerning structural racism were questions of fact, as a result he said an expert may be of little utility because ultimately it is a matter of fact for you. But my Lady, look at CTI’s note, at paragraph 20 for this hearing, of the existing experts: Alex Thomas giving you evidence on decision making structures, Gavin Freeguard similarly giving you evidence of factual issues. Indeed, the same is true of experts in multiple contexts. When I sit as a coroner, cause of death is ultimately a matter for me to decide. Pathologist evidence is not determinative, I am the decision maker, but it is highly persuasive. And here, similarly, we say the question of whether there have been discriminatory practices, discriminatory decision making, whether there is structural racism, these are matters where you would be assisted by expert evidence.

Secondly, my Lady, we have no doubt that you and your Inquiry team have firmly in your mind the disparate impact of Covid. The statistics we do have give us some of that data. We appreciate some of those issues can be dealt with through, for example, considering primary contemporaneous evidence, witness evidence, questions of witnesses and indeed some academic analysis in articles already addressing those matters. We recognise that. But that type of evidence is limited and we suggest that an expert could add real value.

We also suggest an expert could be efficient and a timesaver, rather than non-experts in these issues trawling through detailed searches, attempting to identify relevant material.

And we say at its core understanding the what, the fact that there was an impact, doesn’t assist with understanding the why.

I will give one example on this, my Lady, before wrapping up this point. This is an example particularly relevant to Module 3. You heard me yesterday giving the stark statistic of whilst only 20 per cent of NHS staff are from BAME backgrounds, early analysis showed that they accounted for about 64 per cent of deaths amongst healthcare workers.

Now, there could be a multiplicity of reasons for that disproportionately high mortality rate amongst NHS workers belonging to non-white ethnicities. It could, for example, be linked to their base job roles, the fact that the majority of staff belonging to minorities have frontline jobs, a disproportionately high number of BAME staff members are in medical roles rather than non-medical managerial positions. It could be linked to other factors, such as discriminatory deployment to areas with potentially high virus exposure or, indeed, to a tendency to underlying health conditions.

Now, it is notable that in 2020, surveys that were conducted asking BAME staff why they believed there was such a stark disproportionately high death rate amongst BAME workers came back with this answer: healthcare staff belonging to black, Asian or ethnic minority background, when asked for their opinion about this disproportionately high mortality in NHS workers who were non-white, the most common reason they gave in surveys was deployment in areas with higher potential for exposure to the virus. In other words, their belief at the time was that this was due to discriminatory deployment.

Now, I have no idea, neither do you or your team, at this stage, whether that suspicion is correct. I do know that if we rely on evidence from Kemi Badenoch, then Government minister, marking her own homework, the statistics which were gathered by the government, and looking simply at the headline figures at the end, you will not be able to confidently answer that question.

An expert could even assist you, my Lady, in advising the Inquiry on how to probe that issue, how to conduct the process of the Inquiry itself.

The central issue here is the very statistical gap in this field, which links to the CRDP point made by Mr Friedman, links to the very reason why the TUC undertook such detailed work on this issue at an early stage, concerned that this was a blind spot from the Government. Look at the dying on the job report of June 2020, detailed questionnaire to TUC members, July 2020, and even the TUC setting up a race task force in September 2020. So analysing the adequacy of the available statistics, the adequacy of the processes of gathering information and why some information was never gathered and was never available, all those of those issues go to why an expert on this topic is central, and we say it would be a fundamental mistake to overlook that and to proceed without expert evidence.

We have heard the long list from Mr Keith this morning about other matters, including the expert reports from Professor Marmot, the renowned epidemiologist, Professor Clare Bambra, professor of public health, and other evidence. None of that goes to this central point. It doesn’t answer Ms Morris this morning. It doesn’t answer us yesterday and today. It doesn’t answer Mr Leslie Thomas and the many others who have addressed you on this point.

Finally, my Lady, in respect of funding, may I just put on the record we support the Southall Black Sisters’ submissions that have been made, and we support the application for funding from Solace Women’s Aid. We are deeply concerned, for the reasons we have set out in our written submissions, about the approach taken to funding. I won’t address this further. I am grateful for the indication that it’s going to be looked at afresh. And we would welcome the opportunity, my Lady, to file further submissions with you on this point about why we say there are special circumstances for the TUC and, indeed, there are special circumstances for Solace Women’s Aid.

Unless I can assist you further, my Lady, they’re our submissions.

Baroness Hallett: Thank you very much indeed, Ms Gallagher. As ever, the matters you raise merit very serious consideration and that’s what they will get.

May I also thank you for your opening remarks about the Inquiry’s independence. I’m grateful not for my own sake – I confess I’m used to ill-informed comment and criticism – but I say that for the sake of all those who suffered during the pandemic and who are looking to this Inquiry to produce a record of what happened during the pandemic of the dreadful impact on so many of them, to answer their questions where we can, and to learn lessons. They need to know, and I hope they heard your remarks, that this Inquiry is firmly and fiercely independent, and it will remain so.

Thank you, Ms Gallagher.

Ms Gallagher: Thank you, my Lady.

Baroness Hallett: Mr Dayle.