Transcript of Second Module 2B Preliminary Hearing, dated 29 March 2023

(10.00 am)

Baroness Hallett: Bore da. Good morning, this is the second preliminary hearing for Module 2B. The aim of preliminary hearings is for me to check in public on the progress a module is making and to ensure that that progress is good. It is also a chance for Core Participants to air, in public, any concerns that they may have.

Core Participants play a vital role in the public Inquiry and I have been very impressed to date by the quality of the submissions made to me by many of the Core Participants and the commitment that they have shown.

With their help, I hope we can conduct a thorough investigation and meet the ambitious timetable that I have set. In that way, I can reach conclusions about the preparedness for the pandemic and the response to it and make any recommendations as we go along.

I am determined that the public of the United Kingdom should not have to wait until the end of the Inquiry for all the answers to their legitimate questions and concerns and that any recommendations that may reduce suffering in a future pandemic are published as soon as practically possible.

I have received written submissions from several of the Core Participants to this module for today’s hearing. I’m very grateful to them and I have read them very carefully. I will bear all the submissions very much in mind. It means that those who are making oral submissions need focus only on the matters they wish to highlight this morning.

Mr Tom Poole KC, lead counsel to the Inquiry for this module will now explain in detail the issues for me to consider today.

Mr Poole?

1. Submissions by Mr Poole

Mr Poole: Bore da. Good morning my Lady. Can you hear and see me?

Baroness Hallett: I can, thank you.

Mr Poole: This is the second preliminary hearing in Module 2B, the first one having been held on 1 November some four months ago. By way of reminder for those who are watching and listening, Module 2B is looking at core political and administrative decision making relating to the management of the pandemic in Wales. Primarily, the key strategic decisions taken by the Welsh Government.

I don’t propose to reintroduce the Core Participants or their legal representatives, there are nine Core Participants in Module 2B and all are legally represented.

Written submissions for this morning’s hearing have been received from five Core Participants, namely, Covid-19 Bereaved Families for Justice Cymru; John’s Campaign and Relatives & Residents Association; the Trades Union Congress and the Wales Trades Union congress; Disability Wales and Disability Rights UK; and the Welsh Government.

We are extremely grateful to them all for having provided us with their observations and insights and also for the brevity with which they have done so.

After my submissions, your Ladyship will be hearing submissions from the following Core Participants in the following order: Covid-19 Bereaved Families for Justice Cymru, represented by Bethan Harris; John’s Campaign and Relatives & Residents Association, represented by Adam Straw KC; the Trades Union Congress and Wales Trades Union Congress represented by Samuel Jacobs; Disability Wales and Disability Rights UK represented by Danny Friedman KC; and the Welsh Government represented by Ruth Henke KC.

Before turning to my substantive submissions, may start by briefly explaining the arrangements for this morning’s hearing. These proceedings are being recorded and live streamed to other locations. A transcript of what is being said at the hearing will be made publicly available on the Inquiry’s website in due course.

As is always the case in hearings like this, matters may be mentioned of a potentially sensitive nature. To cater for this, the broadcasting of the hearing via the YouTube feed will be conducted with a three-minute delay. That feed can therefore be paused if anything unexpected is aired which should not be. We do not expect such matters to arise over the course of this morning but I mention this feature so that those who are following proceedings understand the reasons for any short delay, if, for any reason, that did need to happen.

I propose to first say something about the Inquiry’s evidence gathering. Since the last preliminary hearing, a great deal of work has been done and at very considerable pace indeed. As of yesterday, the Module 2B team had issued 84 formal requests for evidence pursuant to Rule 9 of the Inquiry Rules to entities, persons and organisations in Module 2B alone.

A further 73 requests have been made jointly with other Inquiry modules and 39 Rule 9 questionnaires have been issued to members of the Welsh Technical Advisory Group and its related subgroups.

As explained at the last preliminary hearing, the Rule 9 requests are formal requests for documents and, in many cases, witness statements. Most are long and complex, particularly in the case of the key decision makers. To give a sense of the breadth and width of the Inquiry’s reach, the Rule 9 requests include the following organisations: the Welsh Government; the Chief Medical Officer for Wales; the Office of the Secretary of State for Wales; the Technical Advisory Group and Cell; the Welsh Local Government Association; the Wales Trades Union Congress; Public Health Wales; the Children’s Commissioner for Wales; the Health Treasury; the Health and Social Services Group; the National Police Chiefs’ Council; the Office of the Domestic Abuse Commissioner for England and Wales; the Office of the Victims Commissioner for England and Wales; the Intensive Care and National Audit and Research Centre; the Ministry of Justice; the Crown Prosecution Service; HM Courts and Tribunal Services; UK Statistics Authority and Office for National Statistics; Equality and Human Rights Commission in Wales; the Office of the Older People’s Commissioner, Wales; the British Medical Association; Liberty; Justice, the Education and Public Services Group; the Welsh Government Transport Group; the Chief Executive of NHS Wales; Care Inspectorate Wales; and 12 Welsh Government directorates.

Rule 9 requests have also been issued to a number of individuals, such as senior civil servants within the Welsh Government, special advisers to the Welsh Government, individuals from Public Health Wales and members of the First Minister’s Black, Asian and Minority and Ethnic Advisory Group. Further requests of witness statements from Welsh Government ministers, including the First Minister, are due to be issued within the next few months.

Those witnesses involved in core decision making within the Welsh Government are asked to disclose to the Inquiry key emails and correspondence relevant to the issues addressed in their witness statements, as well as any informal or private communications about the Welsh Government’s strategic response to the pandemic.

It shall also be noted that Module 2B, in conjunction with Modules 2, 2A and 2C, has issued over 73 Rule 9 requests to organisations and bodies representing at-risk and vulnerable groups within Wales, as well as organisations representing those with protected characteristics. To date, entities and organisations representing the following groups have been written to: women; black and minorities; children and young people; those affected by health inequalities; those suffering from mental health issues; older people; disabled people; workers’ groups; health professionals; the bereaved; LGBTQI; the traveller, gypsy and Roma community.

In answer to a concern that has been expressed in submissions made on behalf of the TUC, the 2B Module Team is confident that the evidence elicited from the Rule 9 requests that have been issued will reflect the particular experience of at risk and vulnerable people in Wales.

In our CTI note issued to Core Participants in advance of this preliminary hearing, we asked Core Participants to propose the identities of individuals and organisations to which further Rule 9 requests might be issued. Some Core Participants have very helpfully done so, including Covid-19 Bereaved Families for Justice Cymru, John’s Campaign and Relatives & Residents Association and the TUC. All of these suggestions are receiving active further consideration. At this stage, I make three comments on the suggestions which have been made.

First, some Core Participants have provided details of experts in various fields. The suggestions that have been made are all very helpful and will be considered. The details of the suggested experts’ roles, relevant publications and explanations as to what the Core Participants think they might add to Module 2B are all particularly helpful.

Second, suggestions have been provided as to Welsh ministers, civil servants and special advisers who might be contacted for individual Rule 9 responses. An analysis has already been done by the module team of key decision makers within and advisers to the Welsh Government, which have been cross-referenced with these proposals.

Third, as regards organisations which may be able to provide information about the impact of key political decisions on vulnerable, at-risk and minority groups, various helpful suggestions have been made.

For some, whose area of interest is already being covered by other similar organisations, it may be that the possibility of contacting them will be reviewed once those other organisations have responded and an analysis can be undertaken of whether any additional material is required. This appears to us to be the best way to balance thoroughness and the need to avoid unnecessary expense, as your Ladyship requires us to do.

The point appears to be well made, in our view, by the TUC and Wales TUC, where they say that some of the national organisations who have been contacted may or may not be able to provide adequate information about Wales or information specific enough about certain at-risk groups for our purposes. We accept that these possibilities may prove to be right and we maintain an open mind to contacting other groups if the responses which we receive prove inadequate for our purposes on these or other grounds.

I would like to be clear, however, that work has already started on finding out more about the suggested organisations, to the extent they were not familiar to us already.

Before leaving the topic of Rule 9 requests, I would like to repeat the assurances that were given by counsel to the Inquiry at the second preliminary hearing for Module 2, that the Inquiry is committed to fearlessly inquire into the impact on the pandemic on at-risk, vulnerable, marginalised and ethnic minority people and groups. Specifically in Module 2B, we will be considering whether the effects of the pandemic and the measures taken in respect of these groups were considered when making core political decisions.

It is for this reason that a number of Rule 9 requests have been made specifically to elicit relevant evidence bearing on this issue.

In this regard and generally I hope that the number of Rule 9 requests and the wide range of organisations, entities and individuals who have received such requests to date provides reassurance that the Inquiry is casting its investigative net sufficiently widely.

We will continue to provide Core Participants with monthly updates about our evidence-gathering process, including summaries of the Rule 9 requests which have been sent. These updates will also identify future Rule 9 requests that are in the pipeline.

I next propose to address disclosure. As explained in the CTI note, each and every document is individually reviewed, sifted for relevancy, redacted where necessary and then sent back to the document provider for comment.

It is fair to say that this process has proved burdensome and problematic. However, in light of the fact that the start of Module 2, and hence modules 2A, B and C, have been moved back in light of the delayed start of Module 1, the problem is now less acute.

As set out in the CTI note, the Inquiry team has undertaken to redact from disclosed materials the names of junior officials where it can be demonstrated that the disclosure of that individual’s name is not considered necessary and, by virtue of their junior position, they have a reasonable expectation of privacy.

I should, of course, make clear that each redaction which the Inquiry, as opposed to the document maker, is required to undertake is provisional and subject to change, as a result of the Inquiry’s own scrutiny of the evidence and any matters raised by the Core Participants following disclosure to them of the redacted document.

The problem encountered by the Inquiry is that, given the profusion of policy documents and Government emails, there are literally thousands of manual redactions required. In addition, in many cases, it was not possible for reviewers to be sure that the particular name was irrelevant. As such, the process of review and disclosure slowed down considerably.

As you would expect, the Inquiry team has taken a number of steps which has already sped up the process, whilst ensuring that only irrelevant information is redacted. I mention three such steps:

First, increasing the number of reviewers available each day to review documents. Rest assured that very considerable resources are being directed at this process. We hope that, by the time the process is running smoothly, the number of documents reviewed weekly, of which the Core Participants will receive a portion, namely the relevant material, will run into the thousands.

Second, block redacting the headers to emails in the first instance, leaving only the first email in the chain with redactions to specific names where that is required.

Third, working towards a more nuanced automatic redaction by the document handling system of email addresses.

Nevertheless, I accept that, on account of some delays in getting back documents from document providers, as well as the review process, documents have not gone out quite as speedily as we would have wished. We remain determined to disclose documents as soon as we can. To do so, however, we will need the ongoing support from Rule 9 recipients in meeting deadlines and resolving issues promptly when they arise.

As acknowledged by the Welsh Government in their written submissions, there have been some delays in the disclosure of ministerial advices to the Inquiry team. These are now being provided in tranches and reviewed as a matter of priority and the Welsh Government has agreed to provide all outstanding ministerial advices by the end of May. We welcome the Welsh Government’s statement in their written submissions that they intend to engage fully and work collaboratively with the Inquiry to ensure disclosure and statements are provided in a timely and efficient manner.

As of yesterday, Module 2B will have disclosed 473 documents from the Welsh Government, Public Health Wales and the Office of the Secretary of State for Wales. We anticipate disclosing approximately 500 further documents during the coming weeks.

Turning next to the issue of parliamentary privilege, which is not an issue that need detain your Ladyship. The issue was raised in CTI notes in modules 1 and 2 and addressed in our CTI note for this module out of an abundance of caution so Core Participants can understand the general approach that the Inquiry is likely to take. However, as your Ladyship ruled in your 17 February ruling in Module 1, there are no issues of principle that require determination, given the practical approach adopted by the Inquiry.

Before leaving the subject, I would like to thank John’s Campaign and Relatives & Residents Association, as well as Disability Wales and Disability Rights UK for their helpful submissions on the exceptions to the rule against the use of parliamentary materials in legal proceedings. I’m also glad to see that they agree with us that there are no issues at this stage that require determination.

I turn next to experts. Draft expert reports, which cover material relevant to Module 2B, have been received from Professor Ailsa Henderson and Professor Thomas Hale. Professor Henderson’s report deals with political structures for devolution within the UK and mechanisms for inter-governmental decision making between the UK Government and the Devolved Administrations during the pandemic. Professor Hale’s report deals with international data relating to the pandemic. Both draft reports are receiving consideration from the Inquiry legal teams.

A further draft report with relevance to Module 2B, instructed by Module 2, has been received concerning decision making structures at the UK Government in an emergency. The instruction of a similar report relating specifically to the Welsh Government is being considered.

A report has also been instructed but not yet received on the access to and the use of data by the UK Government and the Devolved Administrations during the pandemic. This report from Gavin Freeguard the former programme director and head of data and transparency at the institute for Government is due to be received in draft form shortly. On receipt, we will analyse its content to the extent to which it covers Welsh issues and, if necessary, look to instruct a Wales-specific report on this important subject.

Following disclosure of the draft report relevant to Module 2B, Core Participants will be invited to raise points of clarification or new matters that are agreed by the Inquiry to be relevant with each expert. Given the number of Core Participants across modules 2, 2A, 2B and 2C, it may be necessary for there to be some limitations imposed as to the scope or the number of matters able to be raised by each Core Participant. The Inquiry team will provide further information about the intended process for this involvement by Core Participants in due course.

In the Module 2B preliminary hearing, your Ladyship heard submissions about the need for an expert to deal with the issue of structural racism and discrimination. In your 9 March ruling, your Ladyship indicated that it would be appropriate for an expert or experts to provide an opinion on the issue of pre-pandemic structural racism, with the caveat that it is not within the remit of the Inquiry to conduct an Inquiry into institutional racism.

Your Ladyship also directed that the Inquiry team should look at the same issues relating to other forms of pre-existing discrimination. Our proposal to you, my Lady, is that you adopt the same approach to the issue of pre-existing structural racism and other forms of discrimination in Wales. We wish to emphasise, as I indicated earlier, that this is an issue to which we are very alive in this module.

Turning then to planning and timetabling for the remainder of the module. At the last preliminary hearing, Core Participants were understandably keen that we should set out our plan as to when the public hearings in Module 2B would take place. As already mentioned, necessary changes to the timetabling of Module 1 has resulted in the Inquiry’s overall timetable being altered from our initial projections and you have had already made rulings regarding the timetables of modules 1 and 2, which can be have viewed on the Inquiry website.

The need for clear planning is appreciated. Therefore, subject to submissions which you may hear from Core Participant representatives, we propose that the Module 2B substantive public hearings should commence on Monday, 26 February next year.

It remains our plan that those Module 2B hearings will last for three weeks. More precise plans as to which witnesses will give evidence on which days will be announced in due course when further consideration and analysis of the evidence being gathered permits.

We note what is submitted on behalf of the Core Participants, in relation to whether three weeks is long enough. Given that the bulk of the documents have not yet been received and given your Ladyship’s stated desire to have hearings that are relevant and not undermined by the passage of time, we are loath to suggest an extension in length, given the impact that would have on the rest of the Inquiry. I am sure your Ladyship will reflect on what has been said and keep this issue under review.

We also note what is said on behalf of John’s Campaign and Relatives & Residents Association regarding the adverse affects of delay. As your Ladyship has made clear, you are determined that the Inquiry will not drag on. The Inquiry is making fast progress with six investigations already open and substantive public hearings taking witness evidence starting in June. The Inquiry is acutely aware of the need to make timely recommendations, which is why your Ladyship has promised to publish regular reports.

To this end, it is important that progress continues at pace with the Module 2 teams, assisted of course by the Core Participants, doing everything they can to ensure that the relevant dates for the Module 2 public hearings are met.

As we intimated at the last preliminary hearing, to facilitate access for and engagement by the public in Wales, the substantive public hearings in Module 2B will take place in Wales. Moreover, the Inquiry will be supporting the inclusion of the Welsh language in hearings as much as possible by, for example, simultaneous translation facilities.

As regards hearing venues in Wales, the Inquiry is currently looking into this but I can assure you, my Lady, and, in particular, those who represent vulnerable or infirm groups that those discussions will give careful consideration for the need for minimum inconvenience for and any particular needs of those who may wish to attend those hearings. Taking on board submissions made by Core Participants, in particular Disability Wales and Disability Rights UK, the Inquiry is in the process of developing an overall approach to reasonable adjustments in a systematic manner.

For those who cannot or do not wish to attend in person, the intention is that those hearings, like these, will be live streamed online and the transcripts made publicly available via the Inquiry’s website. The Inquiry will also be able to upload recordings of hearings to the Inquiry’s website and YouTube channel. Before that time, the work of the Inquiry in preparation for those hearings will continue. There are a number of planned events in order to maximise the involvement of Core Participants and ultimately to assist in the fulfilment of the terms of reference.

Before outlining our current thinking in that regard, it is worth pointing out that we consider it inevitable that there may be slight variations in the way in which we propose each Module 2 and its submodules be conducted, both with regard to the issues within each investigation, which may differ in each of the four nations of the UK, and the way in which the procedure might best serve each of those issues being addressed.

There may be a number of legitimate reasons for this such as the timing of the hearings, practicality, the different issues which fall to be addressed in each part of the UK, both generally and at the hearings, the number and variety of material providers and decision makers, the volume of material and the number and interests of the Core Participants, which are different in each of the four submodules.

Though such differences may occur, consistency in the treatment of each of the four nations of the UK is, in our submission, achieved by the broad consistency of the outline scopes in each and the commitment in each to important underlying principles, such as the need to permit participation in the process by those who have been accorded core participation status, which is reflected by each module providing means by which Core Participants may participate beyond what is laid out in the Inquiry Rules.

It is intended in the first instance that we will distribute a list of issues which we intend to address in Module 2B. In the first instance, we propose that this will be issued to the Core Participants who will then be invited to provide comments and suggested alterations and additions to the list of issues. The list will be a refined version of what issues we think arise for determination by the Inquiry in Wales, under each of the provisional outline of scope for Module 2B paragraphs. The list of issues will draw on the extremely helpful suggestions that have been made by many of the Core Participants.

In addition to suggestions in correspondence, John’s Campaign and Relatives & Residents Association, as well as Disability Wales and Disability Rights UK, have made helpful suggestions in written submissions ahead of this hearing. These, as well as other suggestions made by the Core Participants, are being actively considered. I do not propose now to deal with those detailed issues raised but welcome the further engagement of Core Participants on this topic.

In your ruling of 9 March, issued after the second preliminary hearing in Module 2, you directed that Module 2 should produce a list of issues by 28 April. We propose that you should direct this to happen in Module 2B by 12 May.

I turn next to the Rule 10 process. As far as questions for witnesses are concerned, Core Participant representatives are aware of the provisions of Rule 10 and the procedures laid out there for the questioning of witnesses, which will be primarily conducted by counsel to the Inquiry and the opportunity which is set out there for applications to be made for questions to be asked by Core Participant representatives, in particular under Rule 10.4.

In addition to the procedures laid out in the rules, and to the proposed list of witnesses for Module 2B public hearings, which we will share with Core Participants in due course, it is intended that Core Participants will be provided with an opportunity to suggest areas and lines of questioning, which will be covered with each witness.

In your ruling issued after the Module 2 preliminary hearing, your Ladyship described an informal route by which Core Participants could seek to persuade the Inquiry team that there are issues that are of such centrality that they must be raised in the course of the witnesses’ evidence. In Module 2B, we also intend to adopt a similarly informal approach, details of which will be provided to Core Participants when we get nearer the time of those substantive public hearings.

When providing those details, we will also seek to address the questions raised by Core Participants in their written submissions, such as those raised on behalf of John’s Campaign and Relatives & Residents Association regarding the distribution of evidence proposals; Disability Wales and Disability Rights UK regarding, amongst other things, the timescales for receiving and commenting on evidence proposals; and the TUC and Wales TUC on the questioning by Core Participants of witnesses.

As well as the various procedures we currently have in mind, all of which are designed to maximise progress and also Core Participant involvement in the Inquiry’s work, we propose a third preliminary hearing for Module 2B should be held in November this year. At that hearing, a full update can be given on progress and plans for the public hearings, which would then follow in about two to three months’ time later. We note the suggestion made by the Welsh Government that the third preliminary hearing should take place after the conclusion of the substantive hearings for Module 2A. In our opinion, this will be too late to allow for meaningful engagement by Core Participants and input in respect of a substantive public hearing starting in late February next year.

Turning next to Every Story Matters, which is the name that will be given the Inquiry’s listening exercise through which individuals will be able to communicate to us their experiences of the pandemic. It is part of the work of the Inquiry that it will gather and assimilate the accounts of people across the UK about the impact of the pandemic on their lives. Such is the breadth of human experience of the pandemic that this is really the only way in which the Inquiry can ensure that record is made of the accounts of those who wish to participate.

In response to submissions made in Module 1, further information was made available in the Inquiry’s marked newsletter about the details planned for the exercise. This newsletter can be accessed on the Inquiry’s website.

By way of overview the Inquiry has committed to providing different ways for people to share their story including a web form, with a save and come back feature, a phone line, a paper form and in-person community listening events, designed to reach seldom heard or underrepresented groups attended by, where possible, your Ladyship and other Inquiry staff members. These listening events shall be launched later this year and I should add there will be an ability to participate in different languages, including Welsh.

The Inquiry has committed to adopting a trauma-informed approach to the listening exercise and will provide emotional support. Experiences will be gathered and analysed by experts in research and analysis, not by media communications firms. Reports will be produced for each relevant module investigation and will be submitted as evidence to be disclosed to Core Participants and published as part of the hearings for each module of the Inquiry.

The way we plan to gather people’s stories will help the Inquiry obtain as broad an evidence base about the impact of the pandemic as possible, to assist it in reaching robust findings and recommendations which take account of both cause and effect. The Inquiry team is grateful to all those who have recently participated in the webinar on Every Story Matters on 15 March and for all of the feedback which has been received in response to that exercise. The Inquiry is particularly grateful for the feedback received from John’s Campaign and Relatives & Residents Association in their written submissions. The detail of this feedback and other such feedback will be taken on board for future webinars and communications about Every Story Matters, in particular regarding the participation of individuals with nonverbal communication needs.

The Inquiry team acknowledge the importance of Every Story Matters hearing from a diverse range of people who have been impacted and further details will be provided in due course.

I turn finally to commemoration. In order to fulfil its commitments to commemoration, the Inquiry has consulted widely on this issue. The result is that you, my Lady, have decided a tapestry should be created as a physical installation. Each panel will be created by a different artist, working with a particular community or communities to develop it. The intention is for the first panel to be unveiled at the UK’s hearing centre in time for the first substantive hearings for Module 1 in June this year. This panels will be transportable to wherever we hold hearings in the UK so that people in Wales will be able to see them if they attend a hearing in person.

It is also planned that impact videos providing relevant insight into the harm and suffering caused by the pandemic will be shown at the start of each substantive hearing session. This will include the Module 2B substantive hearings in Wales. I would like to make special mention to the Welsh Covid Bereaved who have worked with the Inquiry team to pilot the first tapestry panel and shared their stories on camera last week, which will form part of our impact films to be played in June.

I hope what I have said brings those with an interest in Module 2B up to speed with the developments in our investigation and progress and sets out a roadmap as to how we intend to progress matters going forward, up to the point of our substantive public hearings in Wales next year. As already indicated, a further preliminary hearing for Module 2B is likely to be held in November this year, though I would reiterate that there will continue to be formal and informal opportunities for Core Participants to contribute to the work of the Inquiry.

May I again, on behalf of the Module 2B team, offer our thanks for the helpful contributions made by the Core Participants to this hearing and the continued contribution of Core Participants and other material providers to the work of the modules which proceeds at pace but thoroughly.

Unless, at this stage, my Lady there are any further matters with which I can assist you, those are my submissions.

Baroness Hallett: Diolch, Mr Poole. I’m very grateful to you, thank you.

I think it is now time to call on Ms Bethan Harris.