3. Submissions on Behalf of Covid-19 Bereaved Families for Justice by Mr Weatherby KC

Mr Weatherby: Good morning, my Lady – just. I will be about 30 minutes, I hope no more.

On 8 June 2015, then Prime Minister David Cameron gave a speech to the G7 in Bavaria. A United Kingdom government press release ahead of the speech said this, and I quote:

“In a stark warning to other G7 leaders the PM will say that the world must be far better prepared for future health pandemics that could be more aggressive and harder to contain than the recent Ebola outbreak … experts have warned that lessons must be learnt from what happened. A more virulent disease in future – transmitted by coughing, like flu or measles for example – would have a much more devastating impact if a better approach is not put in place.”

That was 2015. The WHO indicate that globally there have been almost 7 million verifiable deaths from Covid. In a recent article in The Economist, Dr Tedros Adhanom Ghebreyesus, Director General of the WHO, said the real number is likely to be around 20 million. Less than five years after Mr Cameron’s speech, a virulent disease transmitted by respiratory means had arrived and caused devastation around the world.

The bereaved families would like to know, had the better approach that Mr Cameron spoke about been put into place in the United Kingdom, what did his government or those after him do about the threat he had so powerfully raised with world leaders.

Whatever the answer to that question, for well over a decade prior to the arrival of Covid, the United Kingdom national risk assessments, as we have just heard, recognised that the threat of a pandemic was high and that the threat was not only flu but also a quite separate type of new and emerging disease unknown. It cannot be said therefore that this terrible disease, this pandemic, was a black swan event, an event so unlikely that it was practically unforeseeable, and nor did its emergence rely upon the coming together on a number of unlikely phenomena in a so-called perfect storm.

The Inquiry experts, Bruce Mann and Professor Alexander, later this week, we anticipate from their report, will conclude that whole system preparedness for a novel disease pandemic in the UK was “wholly inadequate” as at January 2020. How was that allowed to happen? How did that come to pass?

What we anticipate will be said was that those same national risk assessments recognised that the impact of flu was assessed as high, with what is termed as the “reasonable worst case scenario” of up to 750,000 deaths. But the reasonable worst case scenario for the unknown new disease was put at a far lower figure, between 100 and perhaps 2,000 deaths. No doubt justifications will be given.

However, taking Mr Cameron’s warning that the next emerging disease might have the characteristics of Ebola, 70% fatality, and the transmissibility of measles, 90% of those without immunity, it’s hard to fathom why the UK Government’s national risk assessment took such a complacent view of its likely impact and did so repeatedly.

For the families, therefore, Module 1 should address the key question of whether the United Kingdom did everything reasonably practicable to prevent a foreseeable pandemic of this type or mitigate its impact if it arrived. Why was there apparently no overall plan, no whole system plan? Was there a minister with overall responsibility, a clear and effective framework to ensure everyone worked together, ensure everyone was properly resourced and trained and had the right equipment, ensured the planners had the right scientific and expert advice, and formulated appropriate contingency plans? Were there proper and sufficient auditing and assurance mechanisms in place to ensure the highest quality preparedness possible? It appears none of this. Mr Keith’s very helpful document put up on screen might of itself answer whether there was a clear and effective framework.

As we understand the evidence, it appears that the closest to an overall plan was the Department of Health 2011 pandemic flu preparedness plan. Was that fit for purpose for a non-flu pandemic in 2020? Why wasn’t there this whole system plan?

Many civil emergencies are local, as Mr Keith touched on, and require a local response backed up by central government’s support only where necessary: the Manchester Arena bombing outrage, or flooding perhaps. But wasn’t it obvious that other civil emergencies, including pandemics, are, by their very nature, national whole system emergencies and require national whole system planning as a result?

Why was there apparently such reliance on 2011 Department of Health planning? Wasn’t it obvious that pandemic planning had to go far beyond public health and healthcare? Options for border controls and screening, travel restrictions and quarantine, maintaining food supplies and public security, enforcing emergency restrictions on movement and assembly, maintaining education and social service systems and protecting the economic wellbeing of the country and jobs, are all matters way beyond the remit of the Department of Health and Social Care.

The 2021 National Audit Office report on preparedness for Covid noted that the Cabinet Office, through its Civil Contingencies Secretariat, co-ordinated government planning and response. It found no evidence that there was a consensus on the so-called risk appetite of the government across departments, which means the level of impact the government would deem an acceptable outcome from the particular risk.

Indeed, the same report notes that the Cabinet Office told the National Audit Office that the government’s risk appetite had changed as the pandemic arrived on our shores, meaning that it lowered the threshold for the health and societal impact of the pandemic that it deemed acceptable.

How, the families ask, was there co-ordination of relevant government departments if they were working to different agendas? Why, the families ask, would planning be done on one basis and then response on another? In fact, the same report indicated that a cross-government working group review in February and March 2020 rated more than 80% of the plans as being unable to meet the demands of any actual incident, and it also noted that the Cabinet Office did not have the remit to carry out oversight or assurance over lead or other government departments.

So no central government responsibilities, a co-ordinating secretariat within the Cabinet Office which actually had no oversight or assurance remit or powers, and different government departments working to different agendas and acceptable outcomes. The Inquiry will have to determine whether that was a sensible approach to planning and preparedness for a national emergency or a recipe for chaos and failure.

Did planning sufficiently concentrate on the human impact and not process, and did it fatalistically concentrate on dealing with the aftermath of the so-called reasonable worst case scenarios rather than prevention and mitigation?

First and foremost, planning should concentrate on prevention and mitigation, not how to deal with the number of bodies. It is important that no one forgets, amongst all the figures and statistics and percentages, that the true cost of the pandemic should be measured in the lost years, love, happiness, potential and missed milestones of every person who did not survive to see the world return to some version of normal.

It’s measured in the enduring grief of those we represent for whom the world will never return to normal, because they lost a crucial part of that world, and it will be measured for years to come by those still suffering the effects of long Covid.

The Covid-19 Bereaved Families for Justice represents a large and diverse group of bereaved individuals from across the United Kingdom. They come from all walks of life. Many, by dint of their occupations as well as personal circumstances, saw and felt this pandemic on many levels. Many identify structural discrimination and unaddressed health inequalities as contributing to their loss. The families have different areas of interest, different experiences, different questions, but they’re united not only by grief but by their determination that the legacy of this Inquiry, an Inquiry for which they campaigned, is one of justice, accountability, and, most importantly, change.

They want to save lives.

Jo Goodman believes her father contracted Covid whilst attending an outpatient appointment at his local hospital and sadly died. He was clinically vulnerable. He had not been given advice about the risks or about shielding, and there were no apparent infection controls at the hospital. Jo believes that if there had been proper planning and preparedness and swift action to limit community infections, to implement effective hospital infection controls, and to protect the vulnerable, then her father might not have died. There are, of course, thousands of Jo Goodmans.

Jo met Matt Fowler, whose father had also died from Covid, on Facebook in spring of 2020. Matt’s dad was a previously healthy man in his 50s. Jo and Matt did not know each other. They lived and live in different parts of the country. Together they formed a support group for others like them, and that subsequently evolved into the CBFFJ UK and a campaign to get answers and to try to achieve changes that meant that their devastating losses would not happen to someone else.

They’ve been joined by 6,500 others from all corners of the United Kingdom. Amongst them is Saleyha Ahsan, who throughout the pandemic was a frontline doctor within the emergency department at a hospital in Wales and then, specifically for the second wave, within intensive care where she treated critically ill Covid patients, some of whom died.

During this period in December 2020, sadly, Saleyha’s father, Ahsan-ul-Haq Chaudry, caught Covid and died. Saleyha has produced and reported on a very powerful Channel 4 Dispatches documentary for which she filmed for four months during the pandemic between October 2020 and January 2021 within her own intensive care unit. It’s available on Channel 4 and open source.

Before training to be a doctor, Saleyha served with the Royal Army Medical Corps. She contrasts the state of preparedness in the British Army – which incorporates robust regular training, the putting on, taking off and being operational in protective suits, including respirators – with the state of preparedness she experienced in the NHS where no such training in PPE took place throughout her years at medical school and during her subsequent 14 years as an A&E doctor.

Saleyha is one of five siblings, five doctors and a pharmacist. They work in different parts of the UK. In all their individual years of practice, none of them has had any such training in PPE.

Neither Saleyha or her siblings were ever party to, involved in or made aware of any preparedness training or learning from exercises such as Cygnus, Cygnet or Alice. They have never been involved locally, regionally or nationally in any policy, clinical or management training exercises relating to an outbreak of an infectious disease. Saleyha asks why, when the merits of clinical practice in protective clothing, training, exercising an awareness of emergency plans for frontline medics and essential service workers are all well known and documented.

A disproportionate number of the CBFFJ families are, sadly, from black and brown communities whose loved ones died, often as frontline health or social care staff: doctors, cleaners, cares. Others’ loved ones were transport workers or worked in the gig economy. They want to know if structural racism or the disproportionate effects of a pandemic on ethnic minority communities was considered as a part of preparedness and planning, never mind the response to the pandemic, and if not why not.

Jean Adamson’s father died in a care home to which patients were transferred from hospital without testing. Jean is a consultant who has worked in the area of social care governance for many years, has been an adviser to the Care Quality Commission, and has first-hand knowledge of the lack of contingency planning in the sector. Amongst her questions are: why were there no or insufficient plans to prevent the transmission of Covid between homes due to the use of agency workers, and transfers between homes and hospitals without testing? Where was the protective ring around care homes, as claimed by the former health secretary Matt Hancock?

Kim Nutt, the partner of an ambulance care assistant, wants to know why he was not supplied with proper PPE or guidance as to what protective equipment he should wear. The necessity for proper guidance, stockpiles and surge supply of basic equipment should have been obvious if there had been proper preparedness.

John Sullivan’s daughter lived with a serious disability. He witnessed the lack of any planning to protect her as a disabled person and, to the contrary, he is concerned that a treatment triage tool may have taken account of her disability in a discriminatory way. He wants to know what planning and preparedness there was to protect people especially vulnerable through disability and what regard, if any, there was for combating the effects of structural discrimination against disabled people.

Councillor Sarah Bütikofer was the leader of a district council in Norfolk throughout the pandemic and is a bereaved family member. She witnessed first-hand the lack of resourcing and the complete lack of guidance or clear policy from central government relating to multiple issues, such as PPE supplies, lockdowns, vulnerable adult care arrangements, food supplies, and multiple other non-pharmaceutical interventions. She questions: where was the central responsibility for planning and preparedness, and why was there insufficient resourcing?

I could of course go on, but I’m sure everyone understands these are real and raw issues for the families. There are of course many, many others: Barbara from South Wales, Martina from Northern Ireland, Ian from Scotland. That is why they’ve asked you to hear some of their stories within the hearings, to evidence and illustrate the apparent lack of proper planning and preparedness across many sectors. That’s why so many of them have stood outside this building today holding photos of their lost loved ones to highlight that their stories must not be forgotten.

Essentially, the Inquiry has to address three questions: what happened, what went wrong, and how do we ensure that everything reasonably possible is done to prevent it happening ever again? Three words: facts, accountability, change. From that perspective, the families suggest that the fundamental topics within the scope of Module 1 are:

One, that at UK level who had responsibility for civil emergency resilience, preparedness and planning? Where did the buck stop?

Two, who was responsible for assessing the risk of a pandemic, such as Covid, and its likely impact and how was it done? What was that assessment and was it as accurate as it should have been on the available evidence? Was there methodology and evidential basis in the public domain? Was it properly scrutinised and challenged?

Three, why was there no whole system plan to prevent such a pandemic or mitigate its effects? Who was responsible for such national planning as there was? Did it take proper and sufficient account of all relevant scientific advice, and did it effectively integrate the individual plans of lead government departments and others?

Four, was that planning and preparedness optimal? Was there sufficient understanding of it amongst leading policymakers, including ministers? Was pandemic planning effectively communicated to frontline essential services and the general public? Was it sufficiently resourced? Was there appropriate exercising and training? Was there sufficient engagement with communities and proper consideration of issues of discrimination and vulnerabilities? Was it adversely affected by the diversion of resources to deal with Brexit? Was it affected by political reservations about the WHO or other international bodies, including those in the EU?

Five, in terms of the civil emergencies framework, were the responsibilities on central government clear? Indeed, as we’ve heard, were there any such responsibilities on central government or was the framework strikingly deficient in that sense?

Was there integration of central and local emergency planning and auditing and assurance so as to ensure an optimal and joined-up response?

What framework was there to ensure that the UK Government and each of the devolved administrations integrated their approaches?

Was there a persistent failure across government to identify, learn and improve on responses to crises, as referred to in the 2022 internal Government Crisis Capabilities Review?

Six, to what extent were the citizens of Northern Ireland disadvantaged by the lack of statutory duties on the equivalent of category 1 and 2 responders in Northern Ireland? Why did that gap exist at all?

Seven, was there a culture of secrecy surrounding civil emergency planning and preparedness? Did this include scientific advice, in particular from SAGE, and publication of results and lessons learned from a number of pandemic exercises?

In our written submissions we reference advice given to Matt Hancock, former health secretary, that publication of Cygnus would lead to criticism of lack of preparedness, a reference which we say is significant in illustrating this issue.

Did a closed institutional culture reduce the opportunity for challenge to orthodoxies and did it reduce the autonomy of scientists to frame their own questions rather than be restricted to answering the questions of others? Did a closed culture promote or fail to counteract structural discrimination or to consider health inequalities?

Eight, to what extent did austerity reduce the capacity for preparedness? Were resources diverted from civil emergency planning to maintain other business as usual frontline services because decision-makers hoped emergencies may well not happen on their watch?

Was former Chancellor and architect of austerity, George Osborne, correct when he said that those financial policies fixed the roof while the sun was shining, or is Dr Jonathan Fluxman of Doctors in Unite correct when he described non-NHS public health funding reductions as stripping the lead off the roof to make the buckets to catch the rain?

The families expect the evidence will show a lack of responsibility in government for civil emergency preparedness, with little or no ministerial leadership, and a chaos of committees which led to poor planning and ultimately a reactive, rather than proactive, response to the virus. We anticipate the evidence will show that the most fundamental consequence of this was a slow reaction and, with a pandemic, time is of the essence and lost time is measured in lost lives.

I’ve already noted that there was a national risk assessment which correctly identified newly emerging diseases such as Covid as a threat to the UK, but significantly underestimated the likely impact. If that is correct, why? Between the turn of the century and the pandemic, the two serious outbreaks of coronaviruses, SARS and MERS, had, as we’ve heard, far higher fatality rates than Covid. Neither disease made a significant impact in the UK, most probably because of their transmissibility or their infection rate being low, but also because swift and effective measures were taken in other countries where they arose.

If this was the reason why national risk assessments successively rated the potential impact of pandemic flu as extremely high, but the potential impact of an emerging disease as low, this was a case of reliance on chance outcomes in past outbreaks rather than a properly informed view as to whether a different chance would lead to a catastrophic outcome the next time.

According to the NAO report, when asked, the Cabinet Office asserted that:

“Diseases such as Ebola were expected to burn themselves out quickly, as had been the case on previous occasions.”

Learning lessons from the past is vital. Fighting the last war rather than planning for the next one is a fundamental mistake. There is no scientific evidence of an inverse relationship between virulence and transmissibility. David Cameron seems to have understood that in 2015, and indeed it’s a fact expressly stated in the 2011 pandemic flu plan itself.

Why then did ministers, including Mr Cameron, and scientific advisers not challenge the narrative in successive national risk assessments that an unknown emerging disease would likely be of relatively low impact and cause a low number of fatalities? That’s an important question with which the Inquiry will have to grapple.

If there had been actual ministerial responsibility for civil emergency preparedness, and if there was actual central government departmental responsibility, rather than this apparently ad hoc co-ordination role within the Cabinet Office, might there have been greater challenge and scrutiny? Responsibility leads to accountability, leads to better decision-making. Knowledge that the buck lands at the Minister’s door concentrates minds. If the scientific advice had been more transparent and scientists were able to determine their own questions and encouraged to challenge orthodoxies, scientific autonomy, would the tendency to group-think, and perhaps complacency, have been impacted?

In summary, was the process for risk and impact assessment robust? Was it transparent and open to peer challenge or challenge by policymakers, or were the assessments opaque? Going forward, should there be a presumption that both the methodology and the evidence for the risk and impact assessments of each known threat should be in the public domain, except where there is the clearest of national security issues? Such an approach would foster informed discussion, raise evidence beyond that which has been considered behind closed doors, and lead to greater public understanding and engagement and preparedness and planning, and perhaps a greater appetite for proper funding.

The Inquiry will have to consider whether the labyrinthine risk and impact assessment processes were a sensible tapestry and finely tuned operation or whether, in reality, it was a hotch potch arrangement, more colander than coherent framework.

The stark facts, not hindsight, show that in the years before Covid there was no room for complacency. Going forward, those realities mean there is an urgent need to analyse the past and optimise prevention and mitigation for the future.

The UK is of course amongst the richest nations on earth. It has mature institutions, including with respect to health healthcare and public health. Together with Ireland, it’s an archipelago, islands, giving it obvious geographical advantages. The UK was well placed to see a pandemic coming and to have effective defences and mitigations, planning, resilience and preparedness. It was well placed to see the necessity to have options, such as border controls and screening of entrants. It was well placed to have learned the importance and methodologies of test and trace used so effectively by other nations – in particular, in South East Asia – and for other non-pharmaceutical interventions – including masks, restrictions on mass assemblies, travel, lockdowns – all to be used intelligently and proactively, which, crucially in this context, means early.

Was a lack of incorporation of these measures into planning and preparedness responsible for them being deployed later than was necessary? The families have no doubt this is the case.

The UK was well placed to have good plans for PPE stockpiling and surge manufacturing and supply of the same and other things, such as oxygen and medical equipment. Why was the availability of PPE in particular so deficient?

If we’re right that the use of these measures should have been learned from recent coronavirus history – and indeed recent history of flu, Ebola and other diseases – were there actually any UK plans for each of them? Was there resourcing? If so, were the plans and resourcing adequate or was the UK always one step behind, prevaricating, dithering, delaying and hoping for the best, reacting rather than acting proactively to save lives, minimise disruption and protect communities and the economy?

As has been outlined, so far as we understand the position, the Civil Contingencies Secretariat within the Cabinet Office liaised with lead government departments who owned each risk identified on the risk assessments, because the particular risk fell within their area of responsibility. Those lead government departments were expected to have plans for those risks.

We do not doubt that it was sensible for the Department of Health to have had a plan for a pandemic, for obvious reasons. For equally obvious reasons, that plan should have been integrated into a whole system plan or at least fully co-ordinated with the plans of multiple other relevant departments and agencies. There was no framework requiring that to happen, and it was beyond the responsibility of the Cabinet Office, whose remit was co-ordination and liaison. To the families, that seems to have been a fundamental failure.

There are commonalties to civil emergencies as well as differences. If a minister and department had responsibility for civil emergency preparedness and planning, or even a statutory agency, then it would be responsible for whole system plans for each identified threat, incorporating the planning not only of the lead department but all the others.

There are similarities with JESIP here, the Joint Emergency Services Interoperability Principles. The whole system response can work only if each relevant department, each responder, each agency knows not only its own role but also that of others.

Interoperability fails without clarity, joint plans, adequate resourcing, training and exercising. At the local tier level, interoperability between agencies occurs through the local resilience forums that Mr Keith touched upon, joint plans, training and exercising. Why is there no such framework for central government or between central government and the local tier?

We’ll learn, no doubt, that there were efforts to co-ordinate across government through a myriad of committees. No doubt we’ll be told that there was learning and changes made beyond the 2011 pandemic flu plan. But we urge the Inquiry to drill down into what those produced in reality.

We do understand from the evidence that there was a realisation that the 2011 planning strategy needed updating, and a pandemic flu preparedness board was established. But its work was stalled because of the preoccupation with readiness for Brexit, and it appears few real changes were made. Is the reality that by January 2020, despite this realisation that there was a need for change, there was an absence of action, an absence of planning, which would have allowed the UK to react swiftly, leaving government to largely make up the plan as it went along once Covid arrived?

Finally, what might such a whole system plan have looked like? Taking the 2011 plan as a starting point, given the experience of MERS and Ebola, and a number of exercises that had taken place since, we might have expected a plan which said more than the bare assertion in the 2011 plan that it could be adapted for non-flu outbreaks.

Some aspects of a modern pandemic plan perhaps write themselves. Early genomic sequencing to enable development of tests and establishing immediate vaccine and antiviral research and development, and ensuring manufacturing and laboratory capacity for both testing and vaccines, once available, would be most obvious. Some of these aspects may have been progressed well in this pandemic, although it’s less than clear that this was due to government or indeed planning, and we anticipate that there were aspects of testing, roll-out and capacity which was seriously inadequate.

But a whole system plan should also recognise that a newly emerging disease might have different modes of transmission, it might have different longevity of contagion, and it might be transmissible asymptomatically. The plan would therefore require a range or menu of options, as proved effective particularly in South East Asia long before 2020.

In some respects, the plan would plainly need to be multi-departmental or multi-agency. Screening at airports would need interoperability with airport authorities and the Border Force, as well as public health facilities. Restrictions on assembly would need legal changes and policing. Shielding the vulnerable, combating disproportionate effects due to discrimination, and protecting education and social services provision all necessarily involve interoperability.

A whole system plan would also include PPE procurement and stockpiling, and surge supply of equipment and oxygen, antiviral and vaccine development. It would include economic resilience and securing jobs which required Treasury planning and plans for securing food and energy supplies and distribution.

With the lead government department system which fragmented preparedness to narrow responsibilities, there was little chance of a rapid, joined-up, effective response with an array of tools ready-made at its disposal.

In conclusion, you will be told by some politicians that austerity put the UK in a good place to respond to the pandemic, but experts will point to its effect on public health and local authority resilience funding. The Inquiry will learn also of what happened to health inequalities concurrently with these cuts, and reasons why the widening of such inequalities might have occurred as a result.

We anticipate some senior civil servants will defend the civil contingencies framework and argue that in fact it worked well. But you’ll also hear the view of the experts, including Bruce Mann, one of the architects of the current system, who will say not only that UK preparedness was wholly inadequate, but that there should, going forward, be clear responsibilities on central government, clear national standards and competencies, mechanisms of assurance and adequate funding.

Indeed, at the time the Civil Contingencies Act was enacted in 2004 there were recommendations that it should contain central government responsibilities, as well as subsidiarity to local responders that Mr Keith has explained earlier, we would argue, an opportunity lost at that time.

The lack of central responsibilities meant there was no single point of responsibility and no mechanism for collaboration cross-department or with other agencies. It meant there was little or no assurance or standard-setting for local responders in local resilience forums, and there was no framework for collaboration and co-ordination with the devolved authorities and administrations.

We anticipate Bruce Mann and Professor Alexander will highlight the temptation to pay lip service to responsibilities which are not captured in law, especially when resources are tight.

I’ve addressed at some length the closed nature of the assessments and planning in this area, and asserted that it chilled public discourse and challenge. But we also anticipate that the lack of transparency in preparedness masked the effects of austerity, allowed structural discrimination to continue unchecked, and led to learning from exercises or other events from translating into action.

The answers to these questions and what we do about them is vital. If the last three and a half years have taught us anything, proper planning, adequate resourcing, and swift action saves lives. From the families’ perspective, it appears that the UK had none of those three things. They want to know why, and they want it to change.

Lady Hallett: Thank you very much indeed, Mr Weatherby. I’m very grateful.

Mr Lavery.