5. Submissions on Behalf of Covid-19 Bereaved Families for Justice Cymru by Ms Heaven

Ms Heaven: Good afternoon, my Lady.

Lady Hallett: Good afternoon.

Ms Heaven: I appear today on behalf of the Covid-19 Bereaved Families for Justice Cymru. My Lady, I’ll make some short submissions today, but I won’t be covering all the topics on the agenda.

My Lady, it will come as no surprise that I must start with the submissions on the topic of Rule 9 and disclosure.

The Cymru group recognise that this Inquiry has set itself a punishing schedule, and of course this is entirely right. The Welsh Government’s failure to prepare for the Covid-19 pandemic had catastrophic consequences, and so it is vitally important that the full extent of these failures are publicly exposed and identified so that all lessons can be learnt, and this must happen sooner rather than later.

The Cymru group does support this Inquiry’s attempts to get to the heart of the matter in an efficient and expeditious matter, and the Cymru group is not asking you to delay further the Module 1 hearings.

However, my Lady, as you will of course agree, acting expeditiously must be balanced against ensuring that the Welsh bereaved can participate in Module 1, which your team have recognised covers extensive and complex matters.

It was, of course, Mr Keith King’s Counsel who, at the last preliminary hearing, stressed the important role played by core participants in what he himself termed “this collaborative forensic process”. Mr Keith explained that one of the major ways in which core participants participate in an Inquiry is, in his words, “by way of being able to scrutinise the disclosed relevant documentation for themselves and thereby assist with the identification of suitable witnesses to be called and with the important process by which lines of inquiry and topics are drawn up for the purposes of questioning those witnesses”.

My Lady, we of course agree, but we have still not been able to start this process because in Wales we simply have very limited disclosure.

My Lady, of course you are aware of the state of disclosure in relation to Wales for Module 1, but it’s important to summarise what we have thus far been given, so that the Welsh public understand the position facing the Cymru group in this public inquiry.

My Lady, as at today’s date, not a single Welsh witness statement has been disclosed from a witness of fact or from the Welsh Government. In terms of documents, we have received 26 from the Welsh Government Association, 12 from the Welsh Council for Voluntary Action, 134 from Public Health Wales, and 94 from the Welsh Government. The 94 documents from the Welsh Government were disclosed on 21 April at 5.32 pm.

Some of these documents are clearly of real significance to some aspects of the historical attempts to prepare for a pandemic going back nearly 20 years in Wales. However, they are piecemeal, and their significance is unclear, as there is no witness statement explaining the content and context of the document.

My Lady, it is important to note that it’s not particularly helpful to receive disclosure in the absence of a corresponding witness statement. Many of the names of the key players are not contained within these historical documents, and we have not seen the corresponding Rule 9 requests that may have explained the provenance and significance of the various documents. This of course makes it difficult for the Cymru group to identify relevant witnesses.

The consequence of this piecemeal and limited disclosure for Wales is stark. As at today’s hearing, we are seven weeks away from the start of Module 1, the Module 1 hearings, and as at today’s hearing we are three weeks away from having to respond to your Counsel to the Inquiry’s evidence proposals for each witness you intend to call to give live evidence.

To be clear, and so that the Welsh public understand what an evidence proposal is, an evidence proposal will set out what your Counsel to the Inquiry proposes to ask of each witness, and core participants can then raise any comments and submissions as to any additional issues which they wish your CTI to raise when they first question the witness.

As you know, my Lady, questioning must be based on the evidence in the disclosure. Responding to the evidence proposals will, in reality, be the most important opportunity that all non-state core participants like the Cymru group will have to seek to persuade your CTI to ask witnesses about the issues of concern to them.

We understand from what Mr Keith said this morning that we are to receive statements from the Welsh Government, I think he said in the next two weeks. If we get disclosure at the end of this period, this would leave a week for us to consider the Welsh Government statements and disclosure and then respond to the CTI evidence proposals. If this is the position, then you will understand why the Cymru group are concerned about being able to effectively participate.

My Lady, in two days the Cymru group and all other CPs must make submissions in writing as to what witnesses ought to be called to give evidence in Module 1. It is impossible to see how this can be done properly or at all – and certainly in relation to Wales – when no witness statements have been disclosed, where we have very limited disclosure, most of which makes no reference to names, and we’ve not been formally told where responsibility lies for the core decision-making on Module 1 issues in Wales.

It is now inevitable that the Cymru group will find it very difficult to identify all relevant witnesses for your Inquiry to consider for Module 1 in two days’ time. It is, therefore, of concern that we are three weeks away from responding to evidence proposals and we’ve not seen a single Welsh witness statement.

My Lady, in the circumstances, it’s not unreasonable for those whom I represent to feel that the Inquiry has set them an unrealistic and impossible task. It is simply not realistic to expect bereaved individuals who have come together as a group to identify all the issues of concern to their nation, in this case Wales, in a matter of weeks or maybe days.

We also understand that it’s now inevitable that disclosure will continue up until the day when the Module 1 hearing begins.

My Lady, it would be unfortunate if the ability of the Cymru group to effectively participate was limited in Module 1.

My Lady, as you’ve already stated, when you granted the group core participant status, that you consider that the Covid-19 Bereaved Families for Justice Cymru is best placed to assist the Inquiry to achieve its aims by representing the collective interest of the broad spectrum trouble of those bereaved by Covid-19 Wales in relation to Module 1. This is no doubt in part because you’ve seen and recognised that the Cymru group have been tirelessly campaigning on all the issues that this Inquiry will consider, but particularly on the widespread failure of the Welsh Government and the healthcare system in Wales to prepare for a pandemic.

My Lady, as you also know, Wales, unlike Scotland, does not have its own public inquiry. Mr Drakeford, First Minister for Wales, has consistently refused to establish a Welsh public inquiry on the grounds that the actions of the Welsh Government must be and will be scrutinised in detail alongside the actions of the United Kingdom Government and other devolved nations in this Inquiry.

This public inquiry and Module 1 is therefore the only opportunity for the bereaved people of Wales to seek to ask questions and seek answers and accountability on the issues of pandemic preparedness in Wales.

My Lady, the next issue of concern is really to seek to understand why the Inquiry finds itself in this position generally, and in relation to Wales.

The Cymru group of course recognises that this Inquiry has been seeking to obtain documents as quickly and efficiently as possible, and we know that the Inquiry has faced understandable difficulties in relation to the redaction, as outlined in the last Module 1 preliminary hearing.

We also understand that in certain circumstances the Rule 9 process is an iterative process. However, as has already been expressed this morning by other non-state core participants, it is deeply concerning to the Cymru group to learn, in your latest update, that significant delay in disclosure was caused by the actions of certain state bodies.

The Cymru group consider that it is essential that the Welsh public are kept informed of the timeliness and adequacy of the co-operation received by this Inquiry from the Welsh Government witnesses. This is particularly important given what I said a moment ago about the reliance placed on this Inquiry by the Welsh Government in their refusal to hold a public inquiry in Wales.

The Cymru group note that the Welsh Government started preparing for this public inquiry over 18 months ago. The Cymru group note that at today’s date, three out of four of the witness statements prepared by the Welsh Government, including that prepared by Mark Drakeford, have still not been finalised and none of these statements, as we know, have been disclosed.

This is also the case for the statements made by the chief medical team for Wales. They are also still in draft form. This includes statements from Sir Frank Atherton, Vaughan Gething, Dr Andrew Goodall, Dr Quentin Sandifer for Public Health Wales. In fact, the only finalised Welsh Government related statements appear to be from Chris Llewelyn and from David Andrew Goodall, but they’ve not been disclosed. The statement from Dame Deirdre Hine is also still in draft form.

The Cymru group did ask the Inquiry to clarify whether the Welsh Government was one of those state bodies that had provided an insufficient response to your request for disclosure.

The Cymru group welcomes Mr Keith’s clarification today and his explanation that in the first draft of the Welsh Government witness statement there was a notable absence of supporting exhibits in relation to some areas.

As a result, we now understand that the Inquiry had to go back to the Welsh Government and raise the matter with them and make clear that, whatever assertions statements make, they must be properly supported by exhibits. In other words, they must be properly supported by the documentary evidence that we know is held by the Welsh Government.

The Cymru group do consider that it is simply unacceptable that the Welsh Government did not disclose all the documents they ought to have disclosed to this Inquiry in a timely manner. As I’ve already mentioned a moment ago, the Welsh Government have been preparing for this Inquiry for a significant period of time. The draft terms of reference for this Inquiry were published on 11 March 2022, and the Welsh Government had sight of the Module 1 provisional outline of scope on 21 July 2022. The Cymru group consider that the Welsh Government have been well aware for some time of the documents they ought to disclose to this Inquiry, and that such documents must be disclosed at the first available opportunity. The Cymru group urge the Welsh Government to ensure that there is full and timely disclosure for all future modules.

For transparency, the Cymru group ask the Inquiry to publish all directions issued to Welsh Government and, indeed, all versions of witness statements that have been received by the Inquiry from the Welsh Government. This will allow the core participants and the Welsh public to understand exactly what evidence the Welsh Government did not disclose to this Inquiry when first requested.

My Lady, as you will of course appreciate, disclosure at the last moment merely risks state bodies such as the Welsh Government escaping effective scrutiny by those bereaved by the Covid-19 pandemic in Wales.

My Lady, the Cymru group is very reluctant to call into question your current timetable for the Module 1 public hearings and, as I’ve already said, we’re not asking you to delay those hearings. My Lady, the Cymru group therefore ask you to take all necessary steps to ensure effectively participation moving forward. My Lady, you’re asked to ensure that all Welsh witnesses now adhere strictly to whatever deadlines you impose from today and that witness statements are disclosed as a matter of urgency, and ideally by the end of this week.

My Lady, I now turn to another topic, which is the Module 1 issues list.

The Module 1 issues list is very broad and comprehensive and of course that’s welcomed. However, in part it does lack clarity and, as I know you understand, that does make it difficult for some non-state core participants to fully understand what will be covered in Module 1.

At the last preliminary hearing, Mr Keith explained that high level preparedness, including high level funding and resourcing, would be considered but that sectoral and operational readiness would be addressed in later modules. Mr Keith has very helpfully addressed this matter again today and provided some more clarity, and that does assist.

However, there is still some uncertainty on behalf of my clients in relation to issue 4, public health services.

We do support and echo the submissions made by Mr Weatherby this morning, and simply add that the Cymru group asks for more clarity on how far Module 1 will be considering the high level structural preparedness of NHS Wales for an airborne respiratory virus pandemic, including matters such as the state of the Welsh hospital estate and its infrastructure and funding. We don’t consider that these issues can be classified as operational matters. It’s also not clear whether issue 4 will cover the Welsh social care sector and the structural interface with Welsh hospitals from the funding perspective.

The Cymru group further note that at present no chief executive officer is to be called in Module 1 from NHS Wales to deal with structural planning. It is therefore hard to see how Module 1 will be able to consider, for example, preparedness within the Welsh NHS estate. The Cymru group therefore request clarity on the scope of issue 4, as well as the level of detail that the Inquiry expects to be able to go into, and to make clear where the above issues that I’ve just outlined will fall to be examined if it’s not Module 1.

As I’ve said, the Cymru group consider that such high level structural matters ought to be considered in Module 1, not least because lessons need to be learnt in Wales as soon as possible, given the continuing issue with high levels – and indeed very high levels – of hospital acquired Covid-19 in Wales. Not only that, we understood the position to be that structural and funding matters would not fall within later modules.

My Lady, I now turn to the issue of expert witnesses.

As my Lady will be aware, the Cymru group have already made written submissions on a number of expert reports for Module 1 and have had sight of the most recently disclosed reports.

What is clear from all these reports is that the devolved administrations, including Wales, receive insufficient analysis and in some instances virtually no analysis. In some reports there appears to be a lack of data in respect of Wales, and many of the reports simply lack a robust comparative analysis of the actions of the devolved administrations than the UK Government.

Public Health Scotland have raised a concern about the limited treatment of public health matters specifically related to Scotland in the expert reports. The Cymru group agree with this concern, and we make the same point in relation to Wales.

Now, we do of course understand that the Inquiry has asked for further work to be undertaken by certain experts on the devolved nations, and of course we welcome this, but we very much hope that these further draft expert reports will be disclosed imminently.

Notwithstanding this request, the Cymru group do repeat their earlier requests that have been made in writing that the Inquiry instruct expert witnesses to deal with the Welsh healthcare and legal system relevant to health and inequality in Wales, and an expert in Welsh devolution.

The Cymru group note and support the written request for an expert to deal with Northern Ireland pandemic preparedness. Now, although we’re very close to the Module 1 hearings, the Cymru group do ask you to consider the viability and utility of instructing an expert with extensive experience in pandemic preparedness in Wales.

The Cymru group know, and they have informed the Inquiry, that following devolution steps were taken in Wales to review systems and processes in order to prepare for a pandemic. In addition, the Inquiry can now see from the latest Welsh Government disclosure that pandemic preparatory work was being undertaken from at least 2009 and in fact earlier.

The Cymru group are concerned to understand, then, how this Inquiry is intending to adduce and analyse the historical factual information on Welsh pandemic preparedness in the absence of a Welsh expert. It would appear that the Inquiry is not intending to call witnesses of fact to deal with what steps were taken in Wales from 2009 onwards.

The Cymru group consider that if such an expert was instructed, they could review and analyse the disclosure and provide an independent opinion on Welsh preparedness from devolution onwards. This would not only significantly assist you, my Lady, but it would also assist the Welsh bereaved in effectively participating in the Inquiry. The Cymru group stands ready to suggest a list of possible experts with the relevant expertise in this area, if you so require.

Finally, the Cymru group wish to add that they were greatly assisted by having sight of the instructions to Dr Kirchelle, which were very specific and detailed, and it is hoped that the Inquiry continues to adopt this constructive approach moving forward, so that any gaps in expert instructions can be identified early on by all participants.

The Cymru group, finally, support the clarification requested to the Kirchelle instructions made by NHS Scotland. In short, in instructions to experts there should be absolute clarity whether devolved nations are being referred to, as opposed to England and/or the United Kingdom.

My Lady, I now turn to the procedure on evidence proposals in Rule 10.

I have already made the general point in relation to the time left available to consider any disclosure before responding to CTI’s evidence proposal. As we have already indicated in our written submissions, an inevitable consequence of late and delayed disclosure is that bereaved core participants will struggle to fully respond to witness proposals on CTI’s deadline. We will of course do our best if disclosure is forthcoming imminently. However, delayed and staggered disclosure may well result in bereaved core participants having to submit topics for consideration after the deadlines proposed, and it’s very much hoped that the Inquiry legal team will be understanding here and set aside sufficient time to consider all the topics submitted by core participants.

In terms of the questioning of witnesses by counsel other than CTI, Mr Keith has provided very useful further clarification today on how this is likely to work, and we’ve very carefully noted and taken account of what he has said.

The Cymru group strongly supports the submissions that have already been made in previous hearings and today by Mr Weatherby on the procedure in relation to Rule 10, and on the importance of the bereaved, through their counsel, being permitted in certain circumstances to ask time-limited questions after CTI.

Allowing this to happen will enhance the ability of the Inquiry to involve the core participants in a collaborative fashion, which will make the Inquiry work more effectively, particularly for the Welsh bereaved. It will also allow the Inquiry to draw on the wide range of knowledge and experience of the bereaved.

However, on a practical level, if disclosure is to continue up to and possibly even during the hearing, it’s inevitable that this will impact on the Rule 10 process, and it may well increase the number of applications from the bereaved to question witnesses directly.

My Lady, given the limited disclosure in relation to Wales, I’ve nothing further to say at this stage on the approach to witnesses.

The only further procedural matter that I wish to comment on is the Inquiry’s decision, as communicated in the March update, that written opening statements are not to be invited and will not be considered for Module 1.

Now, a written opening statement, as you know, is in effect a final opportunity – or near final opportunity – for core participants to provide their submissions on the evidence. The Cymru group are in no doubt that all non-state core participants will be able to offer you and CTI significant assistance in written opening statements. This is particularly so given that disclosure will likely occur after the response to CTI’s witness proposals.

There will simply be insufficient time for core participants to make the points they wish to make in a time-limited opening oral statement.

My Lady, the Cymru group consider that not having written opening statements is a very significant missed opportunity on the Inquiry’s part which does, unfortunately, further limit the ability of core participants – and particularly non-state core participants – from effectively participating.

So, my Lady, we do urge you reconsider the issue of receiving written opening statements.

Finally, I just want to end by saying that the Cymru group want to reinforce to you today, my Lady, that they remain committed to working with this Inquiry and your Inquiry legal team in an open and collaborative way.

Thank you very much.

Lady Hallett: Thank you very much, Ms Heaven.

As you have obviously acknowledged, I welcome and encourage contributions from core participants. To date they have been extremely helpful and constructive, and very properly raised areas of concern.

I do understand your particular concerns about, obviously, disclosure and the timetable and matters relating specifically to Wales and the Welsh Government.

I remember vividly from my visit to Wales during the terms of reference consultation that there were issues that were very specific to Wales, as indeed there will be issues specific to Scotland and Northern Ireland.

So I do understand what you’re saying, and I will address the concerns with the Inquiry team, and I hope that we’ll be able to allay any concerns in good time.

So thank you very much for your submissions, and I will consider them very carefully.

Ms Heaven: Thank you.

Lady Hallett: Thank you.

Now I think we have Ms Murphy King’s Counsel.