4. Submissions by Ms Gallagher KC

Ms Gallagher: Thank you very much, my Lady.

May I just check you can hear me properly.

Baroness Hallett: I can thank you.

Ms Gallagher: Thank you, I’m grateful.

I appear today on behalf of the Trades Union Congress, the TUC, and the Scottish Trades Union Congress, the STUC. We have filed written submissions with you in advance of today’s hearing. We, of course, stand by those written submissions. We are grateful to you, my Lady, and to Mr Dawson KC, for the indication that they are helpful and that the various points we have raised are under consideration. As a result, I don’t need to go through each and every point orally today. May I at the outset thank Mr Dawson and his team for their constructive engagement and their commitment to being willing to consider proposals made by my clients and others, and to have a line of communication outside this formal hearing process. We are very grateful for it and we hope that that will facilitate continuing constructive engagement, which is at the heart of what the TUC and the STUC want to do in this Inquiry. Against that backdrop, my Lady, in the short time available today, bearing in mind rumbling stomachs, which I can’t quite hear electronically but I assume they are present, I intend to make some introductory overall remarks, including highlighting matters of particular concern to my clients regarding the interrelationship between this module and other parts of the Inquiry, and then I want to address two specific matters orally. First, timetabling and adequate time for meaningful participation by Core Participants and, secondly, a number of specific matters about Rule 9 and expert input. So, turning to introductory remarks. By way of very brief introduction, my Lady, as you know, and as recognised in your supplemental notice of determination of 10 February 2023, the TUC and the STUC are separate organisations, albeit with similar functions and many shared objectives. The TUC supports its 48 member unions, listed in annex 1 to our submissions, bringing together 5.5 million working people, and many of its member unions have members across Scotland. And the STUC supports its 39 affiliated trade unions and 20 trade union councils, listed in annex 2, representing over half a million, 540,000, workers in Scotland, across a very wide range of industries, many of whom were profoundly affected by the Covid pandemic and by governmental responses to it, whether in Scotland or in Westminster and many of them, my Lady, as you will have seen, involved key workers who provided vital services who kept people in Scotland cared for, fed, able to access the basic goods and services they needed to live, and tended to them when they were sick.

You will see from that list in annex 2 that it spans, for example, warehouse staff, midwives, doctors, railway drivers, HGV drivers, airline pilots, prison officers, artists and journalists, including freelancers and the self-employed, teachers and lecturers, emergency services personnel and workers in a very wide range of industries, including construction, food production and the care sector. We think that the listening exercise will be of vital importance in capturing the experiences of those at work in Scotland in those very many industries listed in annex 1 and annex 2, and both the TUC and the STUC stand ready to assist in this regard, and indeed they are uniquely well placed to do so. My Lady, I don’t repeat the submissions that I made at a previous hearing regarding Workers’ Memorial Day. May I just indicate in this context, again, that of course is of vital importance to workers in Scotland too, and we reiterate our request that the Inquiry mark that, given that the date is upcoming.

My Lady, we have already raised with you the importance of drawing together lessons learned and evidence which has emerged following the Module 2A, 2B and 2C hearings. We remain of the view that strand-tying submissions at that point regarding the UK government’s response are highly likely to be of benefit and, indeed, necessary, and at this stage we say that evidence in respect of Scotland is likely to reveal further information, and may indeed raise further questions for the Westminster government regarding devolved matters, and there may be a compare and contrast exercise to be undertaken in respect of the four nations of the UK and, indeed, the overall UK governmental response. That’s all the more important given that it appears to us very likely that the evidence will show stark divergences between the approaches taken by the Scottish and the UK governments. That’s certainly the experience of my clients, as we made clear from the outset in our application for Core Participants status back in September, our first written submissions for this module in October and my colleague Mr Jacobs’ oral submissions in November and, my Lady, it will also be clear, we suggest, from the draft Rule 9 response which has been provided to your team by the STUC.

Now, we appreciate that you will not be taking a decision on this today and you will be keeping an open mind. We are keen, however, to avoid a situation in which fixed timetables are put in place which allow for no time, for example, between the end of Module 2C and the commencement of the hearings in Module 3, which would essentially preclude this approach which we have been urging from the outset and that’s why I raise it again today. Although it is simply putting down a marker, it is an important marker, and I reiterate it given that we can see the Inquiry timetabling overall is proceeding at pace.

Mr Dawson KC began today by referring to what was happening at this time three years ago, and in particular the number of deaths at this time three years ago, and it was, at the outset of this hearing, a stark reminder of the vital importance of this Inquiry and this module, examining the Scottish government’s core political and administrative decision making from early January 2020.

On behalf of my clients, we also note that by this time three years ago, the TUC and STUC had been raising the alarm for some time, both, for many years, regarding matters you will be exploring in Module 1, regarding pandemic preparedness, workplace safety and other issues which had already become highly relevant in the early stages of the pandemic in Scotland and, indeed, across the UK. But also the STUC, throughout early March 2020, had been raising specific matters and had been raising the alarm for some weeks by the time we hit this date three years ago. For example, there are statements from 3 March about entering talks with the Scottish government and raising serious questions for the UK government at that stage regarding the importance of allowing workers access to sick pay from day one, and indeed the STUC General Secretary, as early as 3 March, highlighted the risk of presentee-ism, where workers might be discouraged from isolating because of their financial circumstances or other workplace pressures. That real time evidence of what the STUC was doing in those early days of 2020 is of vital importance. That statement from the STUC from 3 March was on the same day as Boris Johnson made a statement in which he said: “… I want to stress that for the vast majority of the people of this country, we should be going about our business as usual.” You will see the stark contrast between the wording of the STUC on 3 March and the wording of Boris Johnson on 3 March, where his advice was about handwashing with soap and singing happy birthday and business as usual.

Moving on, my Lady, to specific issue (1) on timetabling and adequate time for meaningful input. We have three short subpoints on this.

1. In relation to the final hearing, may I direct your attention to paragraphs 7 and 8 of our written submissions, where we have raised concerns that the Inquiry has timetabled, it appears, only 14 days of oral hearings for Module 2A. Bearing in mind time permitted for opening and closing statements by Core Participants, assuming counsel to the Inquiry will make a detailed opening statement too, it seems to us that that will allow at most 12 days for oral evidence, and we note again at this stage that we are concerned about that. We are not in a position to make a firm submission on an alternative time estimate but, again, at this stage, when we haven’t yet seen a single page of disclosure on this module, we are concerned that is very short. It does seem to us to be extraordinarily short, particularly when this might be the only part of the Inquiry hearings focused exclusively on Scotland and taking place in Scotland, and we note how much shorter it is than the eight weeks set aside for Module 2 hearings.

So at the very least, my Lady, we ask that there is leeway so that there is flexibility to extend that time estimate.

That links to a second subpoint, (b), the further preliminary hearing. We are concerned that the third preliminary hearing must take place sufficiently early to allow for leeway if you need to adjust that timetable or if we need to adjust the approach. I say that particularly given that, today, none of us have seen a single page of disclosure, we are necessarily making submissions without sight of the Rule 9 requests or sight of the Rule 9 request products, despite the very helpful indications we have had from your team. We suggest that preliminary hearing must be sooner in order to be effective. That’s why we suggest September 2023 in our written note.

Third point under this heading, so point (c), is about the opening statement. Very simple. We, along with the Scottish Covid Bereaved, request advance sight of CTI’s opening remarks. We are conscious of the need for time limits and we wish to adhere to those. To make that effective and fair we say early sight of CTI’s submissions would assist and avoid duplication.

The second and final specific issue for this module that I wish to address is about Rule 9 requests and expert input. I have the caveat, of course, that we haven’t yet seen disclosure, and that’s why it is all the more important that there will be a further preliminary hearing in good time.

We are very grateful for the update from Mr Dawson about certain matters today, including Rule 9 requests being sent to senior members of the Scottish government and also to the Coalition for Racial Equality and Rights, which we proposed along with the Scottish Covid Bereaved. We are very grateful for those and we, of course, agree with those steps being taken. We are unclear whether all the ministers that we have listed and the Scottish government officials we have listed have been approached. See our paragraph 11. We just ask for that to be considered carefully, that those individual names were provided with the benefit of the STUC and TUC’s extensive engagement with Scottish government and Scottish government officials from an early stage, so we suggest that all of those names should be approached if they haven’t been already. In relation to other organisations, we are grateful for the request going to CRER. You will see our concern, my Lady, at our paragraph 13 that because – whilst they have much value and we recognise that, many of the requests in respect of vulnerable groups have gone to organisations across the four parts of Module 2. We just want to avoid a situation where the evidence is overly England-centric. We can’t, at this stage, say anything further than it is a concern. We can’t say whether it is well founded, we will keep it under review. We are grateful for Mr Dawson’s indication that he is reviewing carefully submissions that we made in this regard.

May we just draw to your attention the additional organisations we’ve highlighted in paragraph 13 who we think will add real value: LGBT Youth Scotland, YouthLink Scotland, Alzheimer Scotland, Care Home Relatives Scotland and the Scottish Women’s Budget Group, my Lady. The next point we want to make in respect of this issue concerns the HSE, and we have addressed that in some detail in writing, my Lady. The short point is this, we understand that the Module 2 team intends to direct a Rule 9 request in respect of the HSE, which is welcome and important. The HSE, of course, is the Great Britain-wide regulator of health and safety at work. We have set out in our written submissions why it is important that a bespoke Rule 9 request is made to the HSE by the Module 2A team, because the position in Scotland gives rise to distinct issues which warrant distinction consideration and are unlikely to have been set out in the Module 2 request, and we explain that in writing but, in short, we say the HSE experience in Scotland may well have had differences to that in England. Our understanding is that it did.

The framework for the HSE is fundamentally different in Scotland because public health responsibility is devolved to Scotland, albeit the HSE has workplace health and safety jurisdiction and the Scottish government emergency public health legislation gave particular powers to the police and local authorities to, for example, enforce social distancing in all premises, and the HSE and local authorities in Scotland agreed local enforcement arrangements for that emergency legislation complementary to health and safety law. Of course, in Scotland the HSE chairs the Partnership on Health and Safety in Scotland, a specific tripartite forum for the Scottish health and safety community, supporting the collaboration between employers, employees and government on workplace health and safety in Scotland, undoubtedly relevant evidence, we say, to Module 2A. So we reiterate that request for a specific Module 2A Rule 9 to go to the HSE. Finally, under this heading, my Lady, we are grateful for the indication about the consideration of experts who have been proposed either as experts or for the purposes of sending Rule 9 requests to them, to gather evidence. May we commend to you the three additional names which are listed in our written submissions. Dr Angela O’ Hagan, independent chair of the Scottish Government Equality Budgets Advisory Group, who has very regularly contributed to evidence sessions in the Scottish government and is particularly well placed to give evidence as to the impact of the pandemic upon women in Scotland. Professor Andrew Watterson, member of the faculty of Health Sciences at the University of Stirling, and we note that that is a request echoed by another Core Participant by the Scottish Covid Bereaved. He has commented widely on public health interventions during the pandemic. His commentary has included an examination of how several trade unions helped professional bodies and NGOs, essentially sought to fill gaps in regulatory and ministerial inaction by offering solutions to identify Covid-19 threats for healthcare workers, social care workers, production workers and others. His evidence, we say, would be vital on civil society stepping in where government didn’t go. And, third, Professor Gerry McCartney, who has extensive expertise in public health, inequalities and the Covid response. You will see the summary that we have given of his relevant expertise in our written submissions and we are very happy, my Lady, to work further with your team if any further information is needed about those individuals or about, indeed, the individuals connected to my organisation, who have been cited by some others as potential witnesses to be approached for Rule 9.

My Lady, unless I can assist further, those are the submissions from the TUC and the STUC. We stand ready to help you and we hope that our written and oral submissions today are of assistance to you and your team undertaking this vital task.

Baroness Hallett: They are, Ms Gallagher, and again I thank you for the very constructive approach and again I undertake to ensure that all the matters you have raised are very properly considered. So thank you again.

Ms Gallagher: Thank you.

Baroness Hallett: Mr Mitchell KC.