11. Submission by Mr Dayle

Mr Dayle: Good afternoon, my Lady. I propose to address you on three areas in what I expect to be a fairly brief presentation.

Firstly, I will seek to remind you or perhaps reinforce the matters of principle that are the foundation for FEHMO’s involvement in this Inquiry. Secondly, I will invite you to accept some core lines of inquiry which we consider should obtain heightened scrutiny in Module 2 and, thirdly, make some comments on procedural matters in this module.

In the first preliminary hearing of Module 2, FEHMO submitted that a comprehensive investigation into the Government’s decision making processes and policies was necessary to uncover any systematic failures that may have contributed to the disproportionate impact on minority healthcare workers and their communities.

We urge that a thorough and fearless exploration of these issues was essential for the Public Inquiry to fulfil its mandate and we identified structural racism, institutional racism and health inequality as being important considerations for the Inquiry’s investigations.

FEHMO seeks to reinforce the submissions in this second preliminary hearing. Our position is rooted in the UK Government’s duties under Article 2 of the European Convention on Human Rights. Under the Human Rights Act, the State has a general systemic obligation to put in place a framework of laws, precautions, procedures, training and means of enforcement which will to the greatest extent practicable protect life.

The UK Government held this systemic obligation regarding its decision-making during the pandemic. There was a duty to ensure that whether right to life of its citizenry was at stake, the Government would take positive and protective steps to safeguard those lives.

My Lady, we acknowledge the comments made by you and Mr Keith KC about the work that has already been undertaken by this Inquiry, that appears to be alive to the role of structural racism, institutional racism and health inequality for Module 2 of your investigations.

We note Ms Twite’s distinction between structural racism and institutional racism which is well made.

No doubt your Inquiry appreciates the strength of feelings expressed by many of the Core Participants at yesterday’s Module 3 hearing on these issues and indeed those expressed by others who have spoken before me.

Given that the words used before are still fresh in all our ears, it would serve little purpose for me to repeat them and, in any event, there now appears to be an understanding in principle on the relevance of these issues in Module 2. Nevertheless we wish to reiterate that answers must be sought as to how and why central and local Government decision-making failed to properly consider or even anticipate the issues of inequality that were triggered by the pandemic and why it failed to protect against the disproportionate deaths and poor health outcomes suffered by ethnic minority healthcare workers and their wider communities.

We wish to invite you, my Lady, to place heightened scrutiny on three areas in Module 2: (1) implementation of Government pre-planning; (2) the existing data architecture in public health; and (3) the contemporaneous response to the disproportionate death rate in Black, Asian and minority ethnic communities.

Importantly it must also be said that this Inquiry’s investigation should concern decisions that were made, as well as decisions that ought to have been made but were not. Firstly, in relation to implementation of Government pre-planning, FEHMO submits that Government emergency planning and work in building pandemic resilience should have envisaged that health inequality, occasioned by structural racism and wider issues such as austerity, would exacerbate vulnerabilities and probably result in disproportionately adverse health outcomes within communities of colour. And we trust that is this will be explored within the remit of Module 1.

It follows therefore that such Government pre-planning should have been evident in decision-making given the high percentage of certain illnesses within particular ethnic and racial groups that would heighten vulnerabilities to respiratory illnesses and the high percentage of Black, Asian and minority ethnic staff that are in public facing roles, as you have heard, that were likely to be put at higher risk of exposure of SARS COV2 and other respiratory viruses.

The crucial line of inquiry which we urge on you, my Lady, is were there any specific measures taken by the Government which anticipated the disproportionate impact of Covid-19 on Black, Asian and minority ethnic communities and healthcare workers? If so, what were they and were they taken in a timely manner?

Secondly, the Inquiry must examine the existing data architecture in public health at the peak of the pandemic and here I must pause and acknowledge the comments made by Mr Keith, who appeared to accept our written submission on this point. It is important to establish whether UK laboratory, field modelling and case studies at the onset of Covid included references to race and/or ethnicity and, if not, why not.

This is critical because the first public notice that there were disproportionate deaths from Black, Asian and minority ethnic communities appears to have been purely anecdotal, escalated only through campaigners and news reports rather than from agencies of Government. So the fundamental question for the Inquiry here is: was there any unified national system of data capture that could apprehend rates of infectivity or death rates based on race and/or ethnicity and if no such system existed, how was this data pursued and obtained?

Thirdly, the Inquiry must closely examine the contemporaneous response to disproportionate death rates in Black, Asian and minority ethnic communities. It soon became patently clear in early 2020 that there was as disproportionately high rate of deaths among Black, Asian and minority ethnic healthcare workers and in their communities. This Inquiry must interrogate what, if any, steps were taken to address this contemporaneously and precisely at what points. Was there a coordinated national response to the disproportionately high number of deaths in Black, Asian and minority ethnic communities and those workers. If there was no such coordinated national response, what was the rationale for the failure to act?

My Lady, I will now make some observations on a few procedural matters. So as not to repeat submissions that have been made by those before me, I will very briefly point out that, on the issue of participation, we wish to support the submissions made by Ms Morris on behalf of the CBFFJ on the issue of participation by Core Participants and our ability to ask questions of witnesses in the Rule 10 process.

We repeat the requests made to date for disclosure of Rule 9 requests to Core Participants on the basis that it will allow Core Participants to scrutinise and identify any potential gaps in the evidence requested in a timely manner and we have set out our position in our written submissions and we need not rehearse them in these submissions.

We join the calls requesting Core Participants to be afforded the use of the more user friendly disclosure platform, that issue has been canvassed already and we associate ourselves with the submissions that have been made on this point before. We note the Inquiry’s widening approach on redactions and plans to use auto redaction technology with the intention of speeding up the process.

Now let me say that we appreciate the considerations that drive the need for redactions, as Mr Keith outlined this morning with a great deal of care. It still bears saying, however, that with the removal of individual judgment, there remains a real risk that the process may lose important information. So we urge some amount of caution proportionately in this approach, my Lady.

On the question of timetabling we also share the concerns of the bereaved families group which has already been made about the intended duration of Module 2. We join in the observation that it might well be insufficient for a full and effective investigation, given the subject matter and anticipated witnesses and we ask that this is kept under review.

On the issue of experts, we wish to renew our request for disclosure of expert instructions that were served on the proposed experts. In the alternative, at the very least, we seek confirmation that the named data expert – and I have spoken about the importance and the centrality of the issue of data capture to FEHMO is concerned – that this expert will be addressing the issues that we have raised of available data in respect of race and/or ethnicity. And on the question of the expert on structural racism, we wish to associate ourselves wholly with the powerful submissions of Ms Gallagher.

We disagree with the earlier remarks by Mr Keith and say that this Inquiry would be assisted enormously by the engagement of such expertise. Unlike what was suggested this morning by Mr Keith, an expert on this issue, especially one that has studied structural racism in the context of healthcare, would not be a substitute for findings of facts on relevant issues in this Inquiry by you, my Lady. Rather it is hoped that an expert on this subject can give the Inquiry the benefit of rigorous academic study on the ways in which different societal factors, including decisions by Government, may combine to result in adverse racialised outcomes.

On the issue of parliamentary privilege we note Mr Keith’s observations and assurances on the scope of parliamentary privilege and its implications on the Inquiry’s investigations.

As a matter of principle, and largely as a reaction to Mr Keith’s note on this matter, we question the premise that as a statutory Public Inquiry with the power to examine witnesses under oath, this Inquiry’s use of a statement made during proceedings in Parliament, could be such that the statement is impeached or questioned given: (1) it is always critical to identify the purpose for which evidence or proceedings in Parliament is adduced before privilege attaches; (2) this Inquiry is prohibited from ruling on or determining any person’s civil or criminal liability; (3) the policing of the boundaries between permissible and impermissible uses of parliamentary materials remains an active area; and (4) we are not aware of any decided case which supports the broad brush application of privilege in a statutory Inquiry.

We welcome Mr Keith’s clear indication that the Inquiry will take all practical steps to work around any perceived limitations arising from parliamentary privilege and the assurance that the issue should not impact on disclosure of parliamentary material to Core Participant. However, should any issues arise during the course of Module 2, we will look forward to the opportunity to make further submissions as soon as possible.

On the issue of the listening exercise, Every Story Matters, the FEHMO members are open to participating in Every Story Matters. In our written submissions we said that we are working to understand more about how information will be fed into the planning for and carrying out of detailed investigations under the modules before committing the time involved.

We ask questions about transparency about the process, including who is involved, what steps have been taken to consider any conflict of interests; what areas of expertise any appointed suppliers possess and details as to how this exercise will operate and meaningfully feed into the modular investigations and practice. We welcome Mr Keith’s update this morning and look forward to even more information on this subject going forward.

Finally, FEHMO is conscious that indications have been given previously and this is not a matter that was raised in CTI’s note, that you, my Lady, will be assisted by panel members to make sure the Inquiry has access to the full range of expertise needed to complete its important work.

FEHMO remains of the view that this is a sensible and beneficial process and would be grateful for any update on this matter in the future.

So, unless I can assist further, those would be my submissions at this time, my Lady.

Baroness Hallett: Thank you very much Mr Dayle. A number of interesting points that you make and I shall consider them all very carefully. In relation to the last point you make about panel members, I can answer that simply; it is not a decision for me and I wasn’t the person who made that comment, as you know, because it is in your written submissions. That was the Prime Minister of the day, Mr Johnson.

I’m afraid I can’t provide you with any kind of update, it is not in my power to either grant or decide not to grant panel members. Thank you very much indeed.

Right. Mr Allen you have been waiting very patiently. I’m sorry you are the very last today. Ms Gallagher has been in this position, so she understands.

Mr Allen: Thank you very much my Lady and somebody had to go last and so I hope you will be pleased to hear that I have relatively little to say.

As you know, I represent the Local Government Association, which is the membership organisation for all but two of the 333 principal local authorities in England and all the 22 Welsh local authorities.

We have put in a submission for today’s preliminary hearing which is limited to the issues of expert evidence and it was very helpful to hear this morning from Mr Keith in relation to both of those, which will enable me to make these submissions pretty shortly to you.

The two areas that we put into our submission concerned the expert evidence in relation to data management and the expert evidence that we suggest you will need in relation to the delivery of social care during the pandemic.

I’m going to take the second point first because it can be dealt with very shortly. Mr Keith says that that’s not something of concern at present because it is intended to have a dedicated module on social care in due course.

We understand that point and respect it, but we do think that it highlights yet again an issue which I am sure you are aware of, which is where the borderline will lie between different modules. At present the provisional outline scope for Module 2 states that it is proposed to examine the Government’s guidance and advice for health and social care providers.

Now, local authorities across England and Wales are highly involved in that process, particularly because of the social care responsibilities that local authorities have under the Care Act 2014. While they are not directly involved in the running of private healthcare – social care organisations, the responsibilities for allocation and so on are an important part of the work that they do.

So, understanding where that line lies, I think, is a matter which will need to be hardened up very, very soon indeed, in order to make sure that the focus in Module 2 and the focus in the later module on social care is well understood to all participants.

But, on the basis that there will be consideration in a future module, we don’t press the point about expert evidence on that at this stage.

The more complex point which again Mr Keith addressed very shortly and we are glad that he did, concerns the decision that has already been taken about expert evidence which is being sought from Gavin Freeguard.

The Local Government Association recognises Mr Freeguard as an appropriate expert and we are very glad to hear that he has been appointed. The concern that we have is that the CTI’s note tells us that Mr Freeguard has been instructed to report on the access to and use of data by the UK Government and devolved administrations during the Covid-19 pandemic.

What it doesn’t say is that that specifically will involve looking at the relationship between central Government and local Government in relation to the use of data. Now, data management and interoperability between central and local Government was critical to finding a path through the pandemic.

The role of principal local authorities in relation to many aspects of the management of the pandemic and indeed finding that successful path is, I think, well understood and it is certainly set out in the draft witness statement that has already been submitted to the Inquiry and which is currently being considered by the Inquiry team.

I want, if I may, just to highlight three headings where this is critical. I do that because I recognise Mr Keith’s statement this morning that, in the instructions to Mr Freeguard, the position of local authorities will be considered. We don’t see those instructions as a decision has been taken already not to share instructions with Core Participants.

But the three headings are: Data in relation to clinically extremely vulnerable people; we need to be sure that Mr Freeguard looks at that data. I hope you can still hear me. Data in relation to Covid-19 cases and data in relation to vaccination. I hope my Lady heard that. I will refer to it again. Clinically extremely vulnerable, Covid-19 case data and vaccination data. The way in which that data was shared with local Government is something that we request is specifically raised with Mr Freeguard so that it can be covered in his expert evidence.

My Lady, those are the submissions that I want to make today on behalf of the Local Government Association. In a sense they go to the management of getting that evidence in due course and it is proposed that the Local Government Association should speak to the Inquiry team about it. My Lady those are my submissions.

Baroness Hallett: Thank you very much indeed Mr Allen and I did catch what you were saying at the end, although you were slightly breaking up.

As far as the overlap between modules, I do take your point and it is a point well made and it is something we are going to require help from all of the Core Participants to ensure that we don’t have matters falling between the gaps, as I said earlier.

As far as your point about the instructions to Mr Freeguard, I will take that matter up with the Inquiry team and see what’s happening. Thank you very much indeed.

Mr Keith.

Mr Keith: My Lady, you will be very pleased to know that I have very little to add and I seek only to make two points further by way of oral submissions.

The first point concerns WhatsApp messages. On the subject of WhatsApp messages, I wanted to dispose of any suggestion, which would be unwarranted, that we were not aware of the WhatsApp messages which reference has been made in the press today or any suggestion that we are not in fact already significantly engaged in the process of obtaining WhatsApp messages for ourselves.

The significance of WhatsApp messages has long been known to us and we have been making Rule 9 disclosure requests for WhatsApp messages since September of last year. Those requests have in fact been made across Whitehall to Government departments, individual ministers, civil servants, scientists and specialist advisers.

It is clear from what I have said that what we have requested goes very much further than the messages which are the subject of today’s reporting. We obviously cross-reference details of the WhatsApp groups and messages that we receive in order to identify gaps in that material and where that appears to be the case we then make further questions to fill those gaps.

So we have already received messages from over 60 WhatsApp groups and there will be many more to come, I have no doubt. That of itself provides an answer to those who suggest that the Inquiry should go even faster because no sensible or proper public hearing can be held in which witnesses are examined about emails or WhatsApps and the documents in their possession, until we have those materials gathered before us and that is a process which takes obviously a little more time.

The second point concerns a point that Mr Friedman KC made. He stated in terms that we had reached the stage of deciding which witnesses to call. In fact, if I may correct him, we have not.

We cannot make decisions about which witnesses to call until of course we have received all the documents; we have received the statements in response to our Rule 9 requests and we have considered and refined the issues to which those materials give rise. That is plain commonsense.

And that is why, my Lady, as you know, the list of issues has to be drawn up, refined and of course sent out to the Core Participants before we can make a sensible decision about the witnesses that we intend to call because we must permit the Core Participants the ability to be able to make their own submissions to us in relation to the detail of the list of issues.

When that stage comes, of course, we will welcome all the observations and comments on the list of issues and that is why our list of issues, contrary to what Mr Friedman suggested, will only necessarily be provisional because it cannot at its first stage take account of what is yet to come by way of help and the Core Participants.

My Lady, those are the only two points that I wish to raise by way of reply submissions this afternoon. That concludes everything that the advocates would wish to put forward.

Baroness Hallett: Thank you very much, Mr Keith. Thank you to everybody who has been attending online and stayed with us during the course of another long but important day.

I’m extremely grateful to everybody, as I said at the beginning, for all their submissions and I shall bear them all very much in mind. If I have to make any rulings as opposed to issuing directions about preliminary hearings and the like, I will make any ruling as soon as I can but obviously I want to reflect on a number of the issues that have been raised. Thank you everybody.

(4.30 pm)

(The hearing adjourned)