4. Submissions by Mr Jacobs

Mr Jacobs: Good morning, my Lady, bore da.

I represent the Trades Union Congress, the TUC, and also the Wales Trades Union Congress. The TUC in this Inquiry seeks to bring forward the voice and experiences of the 5.5 million individuals who make up its 48 member unions. That includes members who live and work in Wales.

The Wales TUC is part of the TUC, it represents in the region of 400,000 workers in Wales through its affiliated unions. Those member unions span an array of sectors, all of which were affected by the pandemic. The members of the affiliated unions include a very significant number of key workers, who provided vital services, who kept people in Wales cared for, fed, able to access basic goods and services they needed to live and tended to them when they were sick.

For the purposes of this module, the Wales TUC has provided a detailed response to a Rule 9 request from the module to the team. My Lady, for the purposes of these oral submissions I am going to emphasise a few points of the written submissions. Of course, I stand by the remainder.

The first issue I’m going to turn to is the timetabling for the final hearing.

As I understand matters, it remains the case that 14 hearing days are timetabled to consider the core political and administration decision making in Wales throughout the pandemic. With some time allocated for submissions, it is perhaps just 12 or 13 days of oral evidence. It is presently the only hearing stated to be taking place in Wales and focused exclusively on the pandemic in Wales. Without a list of issues or the opportunity to review any witness statements, it is, of course, difficult to meaningfully submit as to how long precisely the hearing needs to be. But we can say, however, that to us 14 days seems extraordinarily short.

As we see it, there are really two difficulties. The first is a problem of appearance, of it appearing that the Wales hearing is the poorer relative of more robust consideration given in relation to Westminster decision making in Module 2. There is also, secondly, the problem of being able to meaningfully test an array of complex issues in a mere 12 or 13 days of evidence.

An Inquiry of this scale, which does have a compelling need to progress speedily, must inevitably proceed with taking a significant proportion of evidence in writing, rather than orally. That is understood. Even so, the current estimate appears to us to be problematically short.

As you will have seen in our written submission, for the present what we ask is that whatever practical arrangements the Inquiry is making for the hearings in Wales, it retains scope for extending it. It may be however, my Lady, that you decide, instead, to grasp the nettle now and extend the timetable. Perhaps realistically, that will be inevitable.

When it comes to the next preliminary hearing, we will have a significant number of witness statements before us, perhaps a deluge of documents and it may be very helpful to know in advance of that preliminary hearing, rather than after, whether there is scope for extending the timetabled hearings.

In relation to the next preliminary hearing, Mr Poole has indicated this morning a proposal that it be held in November of this year. We say that seems to be eminently sensible. We agree that any later would be too late, with the substantive hearing starting at the end of the following February.

My Lady, I turn to Rule 9 requests. In relation to evidence sought from bodies relevant to at-risk and vulnerable groups, you will have seen the concern raised in writing from the TUC and the Wales TUC as to Rule 9 requests made across the four parts of Module 2 and the importance of seeking Welsh-specific evidence.

All I would say about that now is that counsel to the Inquiry, from remarks made this morning, has clearly heard the points and we are very grateful for that. For the present, I say no more, other than if there is a need in due course to make further Rule 9 requests of Welsh bodies, we will of course assist where we can.

The Inquiry has already sought expert evidence on the arrangements for devolution from Professor Henderson, as we have heard. In our written submission, paragraph 10, we suggested that there would be value in obtaining a report specifically on Welsh devolution from an expert who is specifically immersed in the Welsh-specific issues and we note with interest that an identical suggestion has been made by the Covid-19 Bereaved Families, Cymru. For our part, we suggested Professor Emyr Lewis, from Aberystwyth Law School who was recently appointed on a panel of experts advising the Independent Commission on the Constitutional Future of Wales and has given evidence to UK and Welsh parliamentary committees on devolution.

The Covid-19 Bereaved Families Cymru have made a different suggestion as to the identity of the expert and we note that with interest and, from our perspective, it is the principle of seeking such evidence about which we have a particular strong view, rather than who that person may be.

I turn then to the importance of seeking, in this module, Rule 9 evidence from the Health and Safety Executive. We have previously invited Rule 9 evidence from the Health and Safety Executive, the HSE, in Module 2 and indeed in other modules and we understand that the Module 2 team is now doing so. That is welcome and important. The HSE is the GB-wide regulator for health and safety at work. It had a role to play in providing guidance to employers and also in the monitoring and enforcement of workplace safety, including non-pharmaceutical interventions.

It is important, however, in our submission, that a bespoke Rule 9 request is made of the HSE by the Module 2B team because the position in Wales does give rise to distinct issues, which warrants distinct and separate consideration.

The framework for the HSE is different in Wales as public health responsibility is devolved, albeit the HSE has workplace health and safety jurisdiction. The Welsh Government emergency Public Health Legislation gave powers to the police and local authorities to enforce social distancing in all premises and the HSE and local authorities were responsible for local enforcement arrangements for the emergency legislation, complimentary to health and safety law.

The Wales TUC highlighted, during the course of the pandemic, a lack of coordination in ensuring workplace safety. Partly in response to those concerns, the Welsh Government set up a health and safety forum for Wales which brought together the HSE, local authorities, employers and the Welsh Government in their attempt to improve regulation in Wales.

It is important, we say, that we better understand the HSE’s decision-making actions in Wales during this period and, of course, its interactions with the Welsh Government as is the key focus of this module.

We say a specific Rule 9 is important, not only to capture those specific issues but there may also be a need for evidence from the HSE at the final substantive hearing and it may well be that the HSE witness best placed to give evidence in relation to Wales, initially via a Rule 9 response but also in oral evidence, may not be the same witness best placed to give evidence in relation to England and interactions with Westminster.

My Lady, that’s what we had to say about Rule 9s. On the seeking of expert evidence regarding structural discrimination, we have heard an invitation from counsel to the Inquiry this morning for you to adopt the same approach you have adopted in Module 2 in this module. All I say, on behalf of the TUC and the Wales TUC, is that we endorse that wholeheartedly.

My Lady, one issue that we have raised previously and I do raise again is what we have described as “strand tying” submissions. As it appears to us, once the Inquiry has heard the evidence in Module 2 but also in modules 2A, 2B and 2C, there may well be a need for a short strand tying hearing, eager to hear evidence where issues have cropped up and/or for submissions and Ms Gallagher addressed you on those in Module 2A and I’m not going to repeat in full what she said there. What we invite is that the Inquiry should keep in its plans a provision for such a hearing to be facilitated.

Finally, my Lady, and briefly, the listening exercise. The short point is that we strongly endorse the importance of the listening exercise and we wish to put that on record. It will be important that the listening exercise captures the experiences of those at work during the pandemic and both the TUC and the Wales TUC stands ready to assist in that regard.

My Lady, unless I can assist further.

Baroness Hallett: No, thank you very much indeed, Mr Jacobs, and thank you also for the support that you offered the listening exercise and I know that we shall be calling upon offers of assistance of that kind. So thank you very much indeed.

Mr Friedman KC?