3. Ms Jun Pang

MS JUN PANG (affirmed).

Questions From Counsel to the Inquiry

Lady Hallett: I’m sorry you have been kept waiting for so long and not even knowing whether we’d reach you or not, but anyway we have, so thank you for your patience.

Mr Keating: Could I echo that comment and also thank you for attending today and assisting the Inquiry with its investigations.

We’ve got two statements, I’m not going to invite you to bring them up on the screen at the moment but there’s a statement from Sam Grant, your colleague and the advocacy director at Liberty, and that statement is dated 4 August, and within that 23-page statement he provides 37 exhibits. And he is unable to attend today, so you have kindly stepped in to adopt his statement and you have given a statement yourself to say that you have considered his material and you are able to speak on behalf of Liberty, the organisation from which you both work from, in relation to those matters.

So thank you in relation to that, and as to who you work for and what you do, I’ve touched upon it: you are a policy and campaigns officer at the National Council for Civil Liberties, also known as Liberty for short, and Liberty is a long-standing, respected independent organisation which deals with civil liberty matters, and, as Mr Grant describes it, it’s a human rights organisation that campaigns for every individual in the UK to be treated fairly with dignity and respect.

Is that a fair summary –

Ms Jun Pang: Yes.

Counsel Inquiry: – of Liberty? Thank you.

Within the team you’re in, the focus is on policy, public campaigning, parliamentary advocacy and policy research, and the statements that have been provided on behalf of Liberty set out in chronological order the considerable work Liberty did during the pandemic in relation to policy documents and advocating in relation to the UK Government legislation and regulations, and highlighting issues that emerged.

What I would like to do today is that – your statement and the statement of Liberty is quite wide-ranging, because the legislation was quite wide-ranging, dealing with a huge amount of areas.

Those areas are going to be dealt with in a number of different modules, so I’m going to focus on some narrow issues with you today and have your assistance.

At the genesis of the legislation was the Coronavirus Bill, which became the Act, and that’s something that Liberty touch upon in their statement, describing it as extraordinary in the sense of its breadth and extent of powers it gave the government and the speed it progressed on to the statute books.

Is that a fair description of the Act, or the Bill which then became the Act?

Ms Jun Pang: Yes. I think that from start to finish when the Coronavirus Bill was first published, at more than 300 pages, spanning areas including new extraordinary detention powers, border closure powers, easements on social care and other care provision, the wide range of areas it covered and the little amount of time it was allowed to be scrutinised by Parliament was extremely worrying to us.

Counsel Inquiry: One feature of the evidence is the observations made by Liberty regarding the sunset clause in relation to that Bill which became the Act. Perhaps you could set out what those concerns were and what a sunset clause is?

Ms Jun Pang: Yes, absolutely.

So essentially a sunset clause is when the legislation would cease to be in operation, and at the time when the Bill was published one of the most significant things that we noticed was that there was a two-year sunset clause, which we felt was unprecedented and was a real bar to effective scrutiny, and at the time we recommended that the Bill be amended to implement a three-month sunset clause instead.

Now, as I mentioned already, the Bill was first debated on 24 March 2020 and by 25 March, the next day, it had passed all its stages with scarcely any amendment and received Royal Assent, or in other words passed.

Parliamentarians did secure a six-monthly debate on the Act, and that was one of the amendments that were made, but we felt that even with that addition it was not enough to ensure that the Act could be adequately scrutinised.

Counsel Inquiry: I’ll move on to the vehicle which brought in the lockdown, which was actually regulations which were brought through via the Public Health (Control of Disease) Act 1984, and that was done by way of a statutory instrument, the Health Protection (Coronavirus, Restrictions) Regulations.

That’s something again which is touched upon in the documentation prepared by Liberty, that there was concerns expressed that such a significant piece of – such a significant matter was dealt with by way of a statutory instrument; is that right?

Ms Jun Pang: Yes. I think statutory instruments or secondary legislation in general is much less – it has a lot less scrutiny than primary legislation, which has to be scrutinised by both Houses of Parliament, whereas statutory instruments are made by a minister, can only be – can’t be amended by Parliament, can only be, you know – it’s kind of an all or nothing approach, and we felt that given the breadth of the – and the severity of the restrictions that were being proposed and introduced, that secondary legislation, especially the urgent procedure that was being relied on by government in the Public Health Act, was inappropriate.

Counsel Inquiry: The counterargument would be this is an unprecedented public emergency, the greatest threat in a hundred years to the health of the country, and this was what had to be done in the time available. What would you say to that?

Ms Jun Pang: I think that it was absolutely obviously a moment of crisis, and government rightly was – needed to act to protect human life, but I would say that – and we said at the time – there were other ways that the government could have legislated. For example, we flagged the Civil Contingencies Act which was passed in 2004, and the purpose of that Act was precisely to make provision for, you know, civil contingencies or, in other words, emergency situations where rapid decision-making would need to take place.

I think it’s really vital that, you know, rapid decision-making in an emergency context does not obscure the need for effective parliamentary scrutiny, which is integral to our democracy and also ensures that decision-making is transparent and accountable and responsive to the needs of people who it’s going to affect. And we recommended that the regulations at the very minimum be used – be made under the CCA instead of the Public Health Act because it had safeguards, for example, greater Parliamentary scrutiny, regulations which lapsed within seven days if they were not debated and approved by Parliament, and other measures like that, which the regulations as they were didn’t.

Counsel Inquiry: We’ve heard evidence already regarding the Civil Contingencies Act, and I’m not going to – in this module and at an earlier module – so I’m not going to trouble you any more about that.

I’m going to move on now to an issue which we’ve heard evidence about today, which is the lack clarity between legislation, regulations and guidance.

In relation to that point, it’s fair to say that Liberty was highlighting from the outset the issue between guidance and actually the difference between what the regulations say, that there was a contrast and it led to confusion?

Ms Jun Pang: Yes, absolutely. I think that in circumstances like this, in a public health emergency, what is really vital for government is to ensure that its communications are clear, and also clear about the difference between what is effectively best practice guidance and what is actually the letter of the law, and what is unlawful and lawful activity, because this is important for individuals to be able to know what behaviour is lawful and unlawful, but also for the police to be able to know what the limits are of their enforcement powers. And I think what we saw, and as you may have heard – for example in the matter of, early on, the number of times a person could go out for exercise – there was confusion between all of these different government guidance, what the police were doing in practice, what was in the regulations, which led people to be incredibly confused about what was happening, and also for quite egregious kind of incorrect enforcement to occur.

Counsel Inquiry: Could I stick with the term “confusion” and quote Dame Priti Patel, who agreed that the regulations themselves were confusing. Perhaps we can touch upon a specific area as to regulations.

Regulations: as we’ve heard already, there was numerous regulations between March through the summer, and then I want to pick up on one area which is the tiers and the regulations in relation to that.

Perhaps I could summarise what’s set out in Mr Grant’s statement at paragraph 33. We know on 12 October the Prime Minister announced a tier scheme of alert levels, Tier 1, Tier 2, Tier 3, and in relation to a briefing prepared by Liberty around that time – perhaps we could bring that up, that’s INQ000130683, and it may be it’s an illustration of the documentation Liberty were preparing at the time. This is probably a short document, but these briefings were being prepared, sent out to a number of different stakeholders, or to parliamentarians, and in relation to this we can see in paragraph 1 is that there was concern regarding it being convoluted and confusing.

It talks about that the regulations – the idea was in fact to try to simplify and clarify the impenetrable web of laws currently in force across England, which the submission is that they were vast and complex. But these regulations which were brought in for tiers ran to over 36,000 words and nearly 90 pages, and that they established intricate exceptions. And it’s easier to see in front of us, but as illustrations for Tier 2 regulations, there are 17 distinct and lengthy exemptions to the prohibition on indoor gatherings of two or more people, and 16 exemptions to the prohibition on participating in a gathering of more than six people outdoors, and a lack of clarity as regards the precise contours of the law is a recipe for uneven enforcement and police action.

It’s a granular example, but that even when there was greater efforts to make clarity to the regulations, the concerns of Liberty was that that wasn’t happening, the confusion was still continuing; is that right?

Ms Jun Pang: Yes, and I think again going back to the public communications point, this was – here we’re talking about the regulations as they were in the law.

Counsel Inquiry: Yes.

Ms Jun Pang: The way they’re translated into the public communications about what was and wasn’t allowed add another layer of complexity, and then of course what was happening in practice and what the police were doing, and also understood themselves to be doing, also differed. And I think this just almost got worse throughout the pandemic, as there were more and more laws, more changes to laws that people had to keep up with in order to know whether very everyday activities were allowed or permitted to do.

Counsel Inquiry: As a fair summary, and we’ve dealt with it in a high level way, but there was a number of regulations and each one of those regulations was subject to multiple amendments; and, from your perspective, was it easy to be able to keep up with those changes so that you could advise regarding whether it was proportionate or the drawbacks of those measures?

Ms Jun Pang: I think, in honesty, it was quite difficult an exercise and that’s as, you know, people whose job in day in and day out is to scrutinise legislation. And to be candid, if I weren’t in this job and were just, you know, a person trying to keep up with – trying to understand the situation as it was, it would be incredibly confusing, and I think this was really exacerbated by the fact that Parliament was incredibly sidelined. For example, the first lockdown regulations, Parliament only debated them on 4 May, which was about a month after they had come into force and actually been, you know, in operation. And by that time the regulations had actually been amended, and part of the benefit of robust parliamentary scrutiny is that these issues can be aired in a public forum, there can be discussion and debate, and also understanding of the practical effect and that can kind of trickle out into the wider public consciousness; but in this case we just had an incredibly confusing environment in which, you know, we were trying to influence and understand how these laws could be potentially made more proportionate or, you know, the next set of laws could be more proportionate.

Counsel Inquiry: Let’s look at an example, and this is an area which I think my Lady has commented upon this morning, which was section 51 and schedule 21 of the Coronavirus Act, and this relates to the powers in relation to dealing with potentially infectious persons, where they can be required to undertake a screening. That’s something which was touched upon in the material prepared by Liberty, and I’m going to summarise and perhaps give an illustration.

There was concerns expressed by Liberty, was there not, that the definition of potentially infectious people was too broadly defined, could capture a huge part of the population at any given moment –

Lady Hallett: Pandemic; all of us.

Mr Keating: Absolutely. I think the question, my Lady, was: well, was this actually ever used and utilised, and a view initially expressed this morning – I hope I’m not misstating it – was that it wasn’t utilised.

But in fact your work shows that it was utilised, and concerns were expressed about the applications of schedule 21, and there was prosecutions in relation to it, the exercise of fixed penalty notices in relation to it, and those concerns led to the Crown Prosecution Service having to review penalties; isn’t that correct?

Ms Jun Pang: Yes.

Counsel Inquiry: It was a long summary, and thank you very much for confirming that. In your evidence, you have mentioned the number of penalties which were reviewed, and we also have the benefit of other evidence which has provided an up-to-date figure. So perhaps through you we can adduce the more up-to-date evidence, if that’s okay.

Ms Jun Pang: Yeah.

Counsel Inquiry: That is the statement of Gregor McGill, who is the director of legal services at the Crown Prosecution Service, and we’re grateful for the Crown Prosecution Service providing this statement.

We see here at paragraph 148 is that they had started to do monthly reviews, and they did monthly reviews after Liberty and other organisations had raised concerns about penalties which had been imposed, and as a result of that – so if we can just actually scroll out – there is a graph in page 31, from recollection, a table which might make this a little bit easier. There we are.

If we look at the top table, in relation to this wider review which was done in relation to, first, the schedule 21 Coronavirus Act, we see that there was a total of 311 cases charged and there was a 100% fail record because every one of those cases was incorrectly charged. So that’s pretty unimpressive in terms of a statistic.

At the same time they looked at the wider regulations at that time, and this is further back, so it’s looking back, a retrospective assessment. Of the 2,607 cases charged under the regulations, there still was a significant error rate, and that was 532.

That accords with the concerns which were being expressed to your organisation at the time; isn’t that correct?

I’m just going to utilise some of the matters which Mr McGill helpfully sets out in his statement, and we could perhaps go back to paragraph 149 where he sets out the errors in relation to this review undertaken by the Crown Prosecution Service.

It says that the errors included offending in England, charge under Welsh regulations or vice versa, evidential issues such as the charging of homeless people being outside without a reasonable excuse.

Pausing there, that was another feature which Liberty advocated significantly upon, wasn’t it, the interests of homeless people and the reasonable excuse aspects?

Offences charged, as we just touched upon, under section 51, schedule 21, and where there was no evidence that the defendant was potentially infectious, and it says, as we’ve just seen, every case was charged under error.

And offences, lastly, prosecuted under the wrong iteration of the regulations, using repealed regulations, a feature of the churn of regulations which took place.

So we talked about confusion, confusion in guidance, confusion in the regulations, and here we have utter confusion in the actual prosecution of these matters, and it led to the Crown Prosecution Service having to have cases brought back at the Magistrates Court and charges to be withdrawn.

I should mention, by way of completeness – and we have the evidence, in due course, of the Crown Prosecution Service uploaded – that a number of these charging decisions were, the majority were police, were decisions made by the police, and this is where the Crown Prosecution Service largely was seeking to correct something which had taken place by other bodies.

Is that a fair summary?

Ms Jun Pang: Yes, I think it is.

I just wanted to also flag a concern as well, which is that this is – these statistics are ones that we followed throughout the pandemic, and they are – they do come from the CPS review, but of course a lot of cases, as the CPS statement says at paragraph 153, says that it doesn’t include cases which were finalised using the Single Justice Procedure, and so the actual picture of cases and the fact that people weren’t able to, for example, explain if they had a reasonable excuse in those circumstances, means that the incidence of potentially incorrect or – charging decisions could be much broader than even what is already demonstrated in this.

Counsel Inquiry: But it’s a recognition of the work Liberty did, these are areas which you raised at the time, concerns, they were investigated, and it was borne out that there was difficulties which were addressed.

Let me move on now, please, to – we’ve got two or three more areas I’d like your assistance with, I’m very grateful – another area we have touched upon is the right to protest. I’m not sure if you heard some of the evidence this morning and this afternoon in relation to that.

Two points in relation to this is that there was – in your view, was there clarity as to the position as to the right to protest under the statutory or regulatory framework during the pandemic?

Ms Jun Pang: No. I think that the legal status of protest throughout the pandemic was incredibly unclear. I think that legislation often either provided – failed to provide an explicit exemption for the right to protest or it – and then sometimes it provided that exemption under certain circumstances, for example that it would be social distanced, there would be risk assessments taking place. But this really fluctuated through the different phases of the pandemic, and I guess from our point of view the practical effect of this is that individuals seeking to exercise their fundamental rights didn’t actually know for sure whether they could, and also obviously the other side of that is that the police didn’t understand their responsibilities to facilitate the right to protest which –

Counsel Inquiry: We’ve heard from the police perspective how there was huge challenges on the police in the application of the framework which they were operating underneath.

Looking forward, from your perspective, if there was another pandemic, what is the proportionate solution to balance restrictions on movement if there was to be a pandemic on one hand, and also those human rights, the right to protest?

Ms Jun Pang: I think that, more broadly, human rights and the exercise of fundamental rights like the right to protest needs to not be seen as contradictory or opposite to protecting public health, but actually really essential to ensuring that decisions are scrutinised and including to ensure that government is accountable in making these decisions. And so it can’t be that, for example, as we saw in the pandemic, that there is lack of clarity about whether an exercise of the right to freedom of expression and free assembly is – it needs to be clear that it’s exempt in certain circumstances, including, you know, whether it’s social distanced and risk assessment takes place.

Lady Hallett: I’m sorry to interrupt.

To test that: yes, the right to protest, freedom of assembly, I totally and utterly agree that they are fundamental rights in many ways, but the rest of us had fundamental rights that had enormous restrictions, people couldn’t be with their dying loved one, they couldn’t meet their family.

So if there are those other restrictions on fundamental rights, why should the right to protest be treated differently?

Ms Jun Pang: Thank you, my Lady, for the question. I think that – I think that – I don’t think it’s a question of – I think the government actually answered this question somewhat when they did allow for a protest exemption to happen under certain circumstances where protection of public health was a consideration, and that was kind of built into the exception.

I think that it’s our position, and it was our position, that you could have an exercise of these rights that still upheld the need to protect public health, just as these other restrictions on gatherings, on visiting loved ones were also designed for that purpose.

I think in the circumstances of the pandemic, as they were, especially given the lack of scrutiny that was allowed for legislation even by elected legislators, the lack of that possibility made it even more important in a way for people to be able to continue to make their voices heard, because democracy, our democratic system had almost taken a pause or a back seat when the executive was making laws at such speed and with such little accountability.

Lady Hallett: Thank you.

Mr Keating: Thank you.

Penultimate area I’d like your assistance upon, and again it’s something which has fed through the work of the Inquiry today in relation to disparities in enforcement. We have had evidence from Martin Hewitt this morning; the reports I know you’ve seen as well in relation to the disproportionate impact upon ethnic minority groups in relation to the enforcement of fines, fixed penalty notices.

So with that background, we don’t need to re-trace all the steps, but I just wanted to draw out from you the sort of catalyst for this work.

It’s right, isn’t it, that your organisation, together with The Guardian, raised this issue in May – is that correct – in 2020, regarding the concern from the first set of figures that there was a disproportionate impact on ethnic minority groups?

Ms Jun Pang: Yes, and this was informed by our long-standing work demonstrating the existing racial disproportionality within the criminal justice system. We knew that – well, we could – we predicted, rightly it emerged, that an overwhelming focus on enforcement of compliance – rather than, for example, trying to encourage compliance through effective public health messaging and other tactics like that – would replicate and echo similar patterns that we see in other elements of the criminal justice system. And Liberty Investigates our investigative journalism unit, found that, for example, people of colour were 54% more likely to be fined than white people, and that was from May 2020.

Counsel Inquiry: Yes, and in relation to that work, which – the material has been exhibited and we have that material, which we’re grateful for – a letter was sent to the Health Secretary, who was responsible as the legislative lead department, on 29 May 2020, highlighting these issues.

I’m going to summarise, if I may, that the concern was that it risked reducing trust at a time where there was a need to have that trust to sustain compliance with the regulations. In relation to that correspondence, did you receive any response from the Health Secretary when you highlighted this disparity and raised concerns?

Ms Jun Pang: Not according to our records.

Counsel Inquiry: Data was one matter I wanted to ask you, when dealing with enforcement, throughout Liberty was asking for disaggregated data, so data which would show the breakdown of fines per ethnic group; isn’t that correct?

Ms Jun Pang: Yes.

Counsel Inquiry: A feature throughout the pandemic.

Ms Jun Pang: Yes.

Counsel Inquiry: Was that data which was provided to you?

Ms Jun Pang: I think initially when colleagues did their stories with The Guardian, for example, those were the data then was obtained through FOI requests, freedom of information requests.

Counsel Inquiry: Yes.

Ms Jun Pang: I think afterwards the NPCC did publish data, but at the time we felt that this was sometimes delayed and not – yeah, not timely, and it should have been something that was less of an afterthought and something that was proactive, given the risks of disproportionality.

Counsel Inquiry: Was it something you had to push for?

Ms Jun Pang: We repeatedly made recommendations and suggestions, and I think we had to push for a while for that to be established practice.

Counsel Inquiry: Final area, and I’m going to deal with it briefly but not to – not at the expense of recognising how important an area it is, and we have had evidence about it again today, rightly, in relation to domestic abuse.

Again, this is one of the other limbs of the work of Liberty from the outset, was it not, was raising concerns regarding how the legislation and the regulations were going to impact those who were at risk of domestic abuse; is that right?

Ms Jun Pang: Yes.

Counsel Inquiry: What was, in terms of the high level summary, the concerns of Liberty about the interests of those who were at risk of domestic abuse?

Ms Jun Pang: From early on, we echoed a lot of domestic abuse organisations’ call for the regulations to exempt those who were fleeing harm, and that obviously includes people, survivors and victims of domestic abuse. I think we felt that at the time the exemption within the regulations was still not broad enough –

Counsel Inquiry: Could I trouble you on that one –

Ms Jun Pang: Yes, sure.

Counsel Inquiry: – just to test that. One view, I’m not suggesting it’s my view, but one view is that: the fact that someone would have a reasonable excuse, that would be sufficient if they needed to leave their home. Did Liberty consider that was sufficient, that reasonable excuse aspect?

Ms Jun Pang: I don’t think that it was enough. I think that that was only one element of the regulations. There were other regulations, for example prohibiting public gatherings, that, for example, if … in the case of certain people who may gather to seek support or other issues like that, they may not have been exempt from that.

I think other concerns we had about, in particular, migrant victims and survivors of domestic abuse, is that the lack of, for example, a data sharing firewall between the Home Office and other public services meant that these particular victims and survivors might not feel safe trying to seek support. And that’s obviously an enduring issue, but during the pandemic continued to be something that was quite a significant worry.

Counsel Inquiry: So there was concern that there was a group, a hidden, invisible group of people who were unable to utilise the law to seek support?

Ms Jun Pang: Mm-hmm.

Mr Keating: Okay.

I’m very grateful for your attendance today and your assistance.

They’re all the questions I have, my Lady, and, my Lady, I think you’ve given permission to Mr Thomas King’s Counsel.

Lady Hallett: Mr Thomas.

Questions From Professor Thomas KC

Professor Thomas: Good afternoon, Ms Pang.

I’ve just got a couple of questions for you, which I would like you to help us with. I represent FEHMO, the Federation of Ethnic Minority Healthcare Organisations.

Can you just tell us, please, what were the key concerns that Liberty highlighted in their submissions to the Department of Health and Social Care regarding the negative impact on black, Asian and minority ethnic communities and healthcare workers, migrants, Gypsy, Roma, traveller communities in the context of potential measures? So what were the key concerns?

Ms Jun Pang: Absolutely, and thank you for your question. I think it’s best summarised by the phrase “over-policed and under-protected”. I think, as I’ve mentioned in previous evidence, because of existing – because of what we already know about the disproportionate policing of black, Asian and minority ethnic people, as well as Gypsy and traveller people and other racialised groups, we were incredibly concerned – and unfortunately vindicated in these concerns – that any extension or expansion of enforcement in relation to what was really a public health emergency would disproportionately affect particular communities over others, and that obviously in and of itself this creates unfairness, but also it endangers, you know, the public health objective of having a response that should protect everyone, and not only – well, and shouldn’t target particular people or communities.

I think in terms of the underprotected element, we also worked with specialists in grassroots and other organisations to highlight the fact of insufficient social welfare, housing, other kinds of provision, rights provision, the impact of easements, for example, and the intersectional – the intersection of that with race and ethnicity and how that might mean that certain communities might be suffering a double or triple effect of the pandemic.

Professor Thomas KC: Can I just jump in. What you predicted came to pass, what Liberty predicted came to pass?

Ms Jun Pang: Yes.

Professor Thomas KC: Final question: you mentioned writing a letter to the Secretary of State for Health or his department. Did the government respond to Liberty’s submissions and concerns regarding these potential measures, and were there any policy changes or actions taken in response?

Ms Jun Pang: As far as I know, we didn’t receive a response, and –

Professor Thomas KC: Nothing?

Ms Jun Pang: No. We received occasional responses on particular areas, for example on easements, but that was essentially all the interaction we had.

Professor Thomas KC: Yes, but specifically in relation to the submissions that you brought to the government’s attention, any substantive response to those submissions?

Ms Jun Pang: By and large, no.

Professor Thomas: My Lady, that’s all I ask.

Lady Hallett: Thank you very much, Mr Thomas.

Thank you very much, Ms Pang, I’m very grateful to you.

And just so that you know – I’m sure you do appreciate it, but – I’ve got the written statement that you’ve adopted from Mr Grant, and obviously I’ll take into account very much all the other matters that you raised here. So don’t worry if you haven’t had the chance to say it this afternoon, I will be taking it into account, and the question of easements is quite an interesting one as well. So don’t worry, I will be taking them all into account.

The Witness: Thank you.

Lady Hallett: Thank you for your help.

(The witness withdrew)

Lady Hallett: That’s it, I think, for this week.

Mr Keating: It is.

Lady Hallett: Next week I think we’re giving everybody an opportunity to get up to speed with all the documents that have been disclosed so that we can start the next phase of these hearings.

So we shall return on Monday 20 November at 10.30.

Mr Keating: Thank you, my Lady.

Lady Hallett: Thank you all.

(4.15 pm)

(The hearing adjourned until 10.30 am on Monday, 20 November 2023)