10. Submissions on Behalf of the Trades Union Congress by Mr Jacobs

Mr Jacobs: Good afternoon, my Lady, I appear on behalf of the Trades Union Congress, the TUC.

I address firstly the refusal of the Cabinet Office to provide full disclosure to this Inquiry. Our written submissions briefly addressed the legal issues at play. Those matters will now be for the Administrative Court and we do not address them here, save to reiterate what we consider to be a simple but important point. There is significant focus in the Cabinet Office’s application of relevance, of possible relevance of unambiguous irrelevance, but to us talk of relevance is merely a lawyer’s sleight of hand.

As Mr Friedman on behalf of the Disabled Persons’(sic) Organisations a few moments ago referenced, under the Inquiries Act 2005 you have the power to require the production of any document that is simply related to any matter under investigation. That is the statutory test.

“Related to” has a broader meaning than “relevant to”, they are terms of art. It requires simply some connection to your investigation and requires nothing by way of probative value. That is considered much later in the process.

It is quite clearly the statutory provision which affords you, as the Chair of an Inquiry, a designedly broad power to compel the production of documents. So we say that the legal basis of the approach of the Cabinet Office is thoroughly flawed.

We learn today, as we have in the media over recent days, that the position adopted by the Cabinet Office is ever more farcical. It is eight months now since this module was opened and it is only four months to the substantive hearings, but the Cabinet Office still has not told the Inquiry what relevant content and WhatsApp messages it holds, let alone disclosed them.

The former Prime Minister is seeking to circumvent the Cabinet Office position by direct disclosure, and the Cabinet Office is seeking to sway him with threats of withdrawing legal fees. Another branch of government, the Department of Health and Social Care, has provided full disclosure of messages to this Inquiry without any difficulty at all. It is chaotic and desperate.

The underlying mistake of the Cabinet Office is to approach this Inquiry as if it were a piece of civil litigation in which it can hold on to and conceal anything it doesn’t consider relevant and deploy legal argument as part of the game. This is not civil litigation. It is a public inquiry designed to uncover the true circumstances of a government’s response to a pandemic that cost many thousands of lives.

This public inquiry must inspire the confidence of the public, but what the Cabinet Office suggests as an approach, unashamedly, is counsel sitting with the Cabinet minister, or whoever the relevant person may be, to decide for themselves what is irrelevant and can be kept from the Inquiry. To the public, it would look less like a robust public inquiry and more like turkeys deciding whether to vote for Christmas.

We now have the issue of Cabinet collective responsibility. Let’s state in terms what is meant by that. It is that if different ministers held differing views, those differences of opinion should be kept secret from this Inquiry. What an absurd approach to a public inquiry. It is an approach of secrecy rather than of truth, and we hope it is right that it is an issue that is to be dropped and not resurrected.

The current government may have ordered this public inquiry, but perhaps it did so reluctantly and without actually wanting or being prepared to accept the scrutiny that this Inquiry must bring to bear.

Irrespective of the merit of the novel argument the Cabinet Office raises, there is something far more important at play: the public interest. That public interest is served by this Inquiry being allowed to proceed without being frustrated.

To the more than a million key workers in the pandemic, the willingness of ministers to be seen clapping outside their homes and showing support for key workers will ring hollow now that the Cabinet Office is fighting this Inquiry’s work as it seeks to learn the lessons from the pandemic and save lives in the future. Those who risked their lives to fight the virus, who held the hands of the dying and helped loved ones say goodbye from afar, who kept our lights on, who produced our food and filled our cupboards, who staffed the testing centres, who drove the buses, the taxis and the trains that got nurses to work, who taught our children and who stayed at home to protect others, deserve more than this unedifying spectacle of government ministers resisting government communications being made available to an Inquiry concerned with government decision-making.

As the TUC’s assistant general secretary Kate Bell has recently put it:

“The Covid pandemic impacted every single person in the UK, including millions of workers who put their lives on the line. The very least we all deserve is openness and transparency from those who took the decisions. The lessons we need to learn from this pandemic are too important for the government to play politics with. It must co-operate fully.”

My Lady, I turn to the list of issues.

We have made written submissions, and as you will have seen we have called for the list to descend into far more detail, and certainly for our interests we remain uncertain as to the extent to which the Inquiry is going to be considering adequately the extent to which core political decision-making on NPIs appropriately took account of and was influenced by the implementation and their effectiveness across the range of workplaces.

We take as just one example that of education. Non-pharmaceutical interventions in schools, including but not limited to partial school closures, were a core part of the government strategy. We have a lengthy corporate statement from the Department of Education and some expert evidence which touches on the issue, but education receives not a single mention in the list of issues other than in the context of modelling educational and mental health impacts.

Mr Keith King’s Counsel said this morning that of course there will be exploration of broad reasons for school closures, but detailed examination of the merits and operational impacts can only take place in the later module.

As to that, we make two points. First, if exploring broad reasons means really hearing from the government as to its rationale, but without the breadth of evidence to test it, then we would be concerned that that is insufficient including for Module 2.

Second, we also say it really underlines the need for more detail in the list of issues. Saying we’re going to examine the broad reasons does not set the Inquiry or core participants on a clear course.

As in our written submissions, we are concerned that the lack of clarity in relation to education is but one example of an uncertainty that arises across a range of sectors: the transport sector, the communications sector, the manufacturing sector, the construction sector, and the retail sector.

On the list of issues, we also support the submissions made by the Long Covid group and their advocacy in respect of their six framework questions, and as recently as March of this year the TUC published a joint report with Long Covid Support which examined the effects of long Covid in the working population.

I turn to the scope of the evidence and Rule 9 requests.

The picture as to the evidence gathering and the Rule 9 process is only really just emerging as we begin to see the first disclosed statements. As it appears to us, there is a significant focus on central government evidence. There is also some evidence from impact groups, as they have been described, which is obviously important and helpful.

Then there is evidence from other professional organisations from outside the government that had some involvement with responding to and consulting with the government on NPIs and implementing them, but we are concerned that this group of evidence is very small.

By way of example, and returning to the issue of education, we are uncertain as to which professional organisations involved in consulting with the government and implementing NPIs, other than the TUC, the Inquiry is seeking evidence from in Module 2, and as far as we understand the answer is none.

Similarly, the Department for Transport has given a witness statement describing its liaison with industry partners, but we are not aware that any of those industry partners, apart from the TUC affiliated unions, have been approached for evidence, and we suspect that the same point can be made across a range of sectors.

As in our written submissions, if the Inquiry is persuaded to seek further evidence as suggested, the TUC would welcome an opportunity to liaise with the Inquiry to seek to identify the appropriate organisations. The evidence is important, we say, so that Module 2 can go beyond noting government rationale as to NPIs and really have the breadth of evidence in order to be able to challenge it.

Finally, my Lady, it is important that I put on public record the TUC’s position as regards the funding position for its legal representation. At the outset of this Inquiry, you called for groups to work together so as to focus and limit the number of core participants. The TUC answered that call and is seeking to represent union interests across England, Scotland, Wales and Northern Ireland, and across a range of sectors, including healthcare, social care, education, transport, manufacturing, communications, retail and others.

So far it is seeking to do so as a core participant in all six of the ongoing modules in which core participant status has been granted.

The Inquiry has refused any funding for the TUC and so it is self-funding. The TUC has been able to commit £200,000 to its work on the Inquiry for the reminder of the year, of which £150,000 is available to fund its legal representation. That is approximately 20% of its annual budget that is available for ongoing projects. The spend is, therefore, a significant financial commitment, at least as compared with the available budget, which reflects the importance of the Inquiry to the 5.5 million members of the TUC’s affiliated unions.

Nonetheless, you will no doubt recognise, my Lady, that that is nowhere near sufficient to allow adequate legal representation. So it is that the TUC is proceeding with a single junior counsel and its engagement with the evidence is necessarily severely constrained. We consider that the Inquiry will be poorer for that limited engagement.

Funding was refused because the TUC is a substantial organisation, which is accepted, and you considered that there were no exceptional circumstances warranting funding. We consider that the breadth and importance of the TUC’s interests and the extent to which its involvement will be hampered without funding quite readily amounts to exceptional circumstances.

Notably, as it stands, the TUC is quite possibly the largest non-state representative core participant to the Inquiry but one of the smallest in terms of its resources for legal representation. That should be seen as a problem.

I get to this, my Lady: we would welcome any dialogue with the Inquiry that it’s willing to afford us which might involve these funding difficulties and which would allow us to give some semblance of proper representation across the range of sectors that the TUC is seeking to represent.

My Lady, those are my submissions.

Lady Hallett: Thank you very much indeed, Mr Jacobs.

I think Mr Dayle, please.