4. Submissions on Behalf of the Covid-19 Bereaved Families for Justice Cymru by Ms Harris

Ms Harris: Good morning, bore da. I represent Covid-19 Bereaved Families for Justice Cymru, CBFJ Cymru.

CBFJ Cymru is dedicated to campaigning for truth, justice and accountability for the bereaved in Wales. Its members have experienced first-hand failures to respond adequately to the pandemic in Wales and the UK as a whole, and the catastrophic effects of those failures. The group seeks answers about what happened in Wales and why decisions which impacted on Wales were made in the way that they were, so that there can be true accountability and lessons learned.

The pandemic response in Wales was primarily the responsibility of the Welsh Government, acting under its devolved responsibilities, and it primarily must be accountable for that response. However, the UK Government’s decisions and UK level structures also played a part in shaping the response in Wales.

In the period leading to the first national lockdown, Welsh Government decisions were aligned with UK Government decisions, all four nations sat on COBR, and agreed the Coronavirus: action plan of 3 March 2020 and full national lockdown on 23 March. How decisions relating to Wales were made will be examined further in Module 2B of this Inquiry, but we know that after 23 March 2020 at times Wales adopted the same policy as the UK Government’s policy applicable in England, although at times with later implementation in Wales, for example the hospital discharge policy and whole care home testing, and at other times policies were different. For example, the switch from Stay at Home to Stay Alert in May 2020 was not adopted in Wales, and in Wales there was an autumn firebreak. The main financial levers were at the UK Government level. SAGE was the main source for scientific advice UK-wide, including for Wales.

Against this background, a central concern for the Welsh bereaved families in this module, which will be addressed in this statement, is whether the UK Government and the devolved Welsh Government collaborated effectively.

This statement will also consider some of the key areas of UK Government decision-making and UK structures where these have shaped and are relevant to understanding the response across the UK, including Wales.

Two brief initial points. On preparedness, the lack of preparedness for a pandemic is a key matter of context for the subject matter of this module. Two significant aspects relevant across the UK were the lack of an overarching plan for a pandemic response such as this, and the lack of a scalable infrastructure for testing and for test and trace. As was pointed out in the evidence to the Inquiry, had the public health infrastructure in the UK been as developed as in some other countries, other paths and outcomes may have been open to the UK.

Professor Hale’s evidence to the Inquiry was that the most effective governments were able to minimise the use of stringent measures by relying on effective test and trace and isolate systems, and that such strategies are particularly effective when combined with fast, stringent but limited non-pharmaceutical interventions (NPIs).

The UK did not have that infrastructure, which could have given it a better chance of a response that would cause less harm. So this must be one of the key lessons for the future.

The second opening point is that in this group’s opening statement to this module, we asked if the older population were a cohort who were overlooked by the UK Government, whether they were seen as lesser or dispensable. The evidence to the module has shown that this cohort were sometimes spoken about by the then Prime Minister in a way that suggested that they were dispensable:

“… there will be more casualties, but so be it – ‘they have had a good innings’.”

Is one example of that type of comment.

Turning to the initial response to the spread of Covid-19, at the early period of the response to the pandemic the evidence has shown fundamental problems in the decisions, actions and inactions of the UK Government. The Welsh Government was closely tied in to the response at the UK Government level in this period, so the evidence provides insight into the response in Wales too.

The UK Government response was shown on the evidence to lack a sense of urgency, to lack a plan and a strategy, and the lack of a strategy impacted on how science advice could be provided to it. Evidence was given to the Inquiry that throughout 2020 SAGE suffered from having little sense of what the high-level strategic objectives of the government were in managing the crisis, and that had it known it may have reached conclusions about the need to adopt the policies that it ultimately advised faster.

The only overarching plan for a pandemic response prior to 3 March 2020, the 2011 pandemic flu plan, which applied to Wales also, was aimed at managing the consequences of a flu pandemic, not stopping a virus from spreading. It was based on the wrong doctrine.

Evidence has been heard about Exercise Nimbus in February 2020, that it was directed not at what could be done to counter the spread of the virus, but how to prioritise patients in the event of the NHS becoming overwhelmed.

As was stated in the evidence, what should have been addressed was at what point to lock down, how much data was needed before making a decision, what NPIs were going to be put in place and in what order, how do you save lives in the least damaging way; and not, are we going to find enough mortuary space, and who should decide on prioritisation for NHS treatment?

The Coronavirus: action plan, a four nations document, set out an approach but was less than a plan for action. References to action points to counter the threat of widespread spread of the virus were oblique and it overstated the extent of any other existing plans in place.

The decision made by the UK Government on mass gatherings was not to ban mass gatherings and not to advise against them until 16 March 2020, the same approach being adopted by the Welsh Government. The Inquiry should find, as has been accepted in the evidence of witnesses, that mass gatherings should have been banned earlier. Other countries could be seen to be banning mass gatherings, and on 12 March 2020 the number of cases was in the thousands and growing. The people in Wales knew, as evidenced by the fact that you could not buy hand gel anywhere in Wales at that time.

Politicians should have thought more widely than just the scientific advice and taken account of the wider context at that time.

The evidence to the Inquiry has shown that throughout February and into early March, evidence was emerging about the growing threat of the virus and this was not being responded to with proportionate speed and focus, and it followed inevitably, and as the evidence has shown, that the interventions that were necessary were not timely. This includes the 23 March national lockdown agreed by all four nations.

I now refer to asymptomatic transmission. CBFJ Cymru are deeply concerned about the evidence showing that the risk of asymptomatic transmission was not factored into decision-making at the early stage. It is clear that although uncertain, the risk of asymptomatic transmission was known very early on. The way this factor did not inform decision-making even when there was very high vulnerability to the disease is impossible to comprehend.

The then UK Government Secretary of State for Health and Social Care when giving his evidence appeared not to have understood or to be ignoring the full findings in the legal case that was brought by Dr Gardner and Ms Harris which challenged the March 2020 hospital discharge policy and other surrounding policies. The court found that those drafting the March discharge policy and the April admissions guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.

Paragraph 289 of the judgment.

We have also heard evidence about the fact that a policy relating to reducing the movements of care home staff between different care homes was not implemented until 15 May. Had it been brought in sooner, then it would have prevented some of the spread of infection into care homes, and that the risk of asymptomatic infection had not been properly taken into account in deciding whether such a policy was needed at an earlier stage.

Lessons must be learnt from the way the system for health and social care failed to do what it was supposed to do to protect vulnerable people in the most fundamental way, and about how a risk that was uncertain, but one that had the potential for devastating consequences, was taken into account in decisions that concerned very vulnerable people.

The issues will be returned to in the context of Wales in Module 2B, because Wales adopted a similar hospital discharge policy to the one considered in this module, and will have also needed to consider asymptomatic transmission and very vulnerable populations.

I deal very briefly with airborne transmission. In the group’s opening statement we invited the Inquiry to consider whether enough was done to consider this factor, the airborne nature of the virus, and in the course of Module 2 the Inquiry has heard evidence from Professor Catherine Noakes, who was convener and chair of the Environmental Modelling Group, which was a subcommittee of SAGE.

She spoke of this aspect of the virus being overlooked, and the need for mitigations which focused on ventilation, the need for care in relation to appropriate face masks that could guard against the aerosol aspect of the transmission.

She also referred to the fact that information on the websites of Public Health England and the NHS had not provided up-to-date information, and had not referred to the airborne nature of transmission, and that she had needed to contact Professors Whitty and Vallance about this, and indeed the information on the NHS website was not changed until June 2021.

The Inquiry has also heard evidence from Dr Banfield from the BMA about the importance of ventilation, about the importance of FFP2 and FFP3 respirators being available for vulnerable people, as offering better protection from infection than ordinary masks, and the need for clearer public health messaging in this area.

CBFJ Cymru believe that the seriousness of airborne infection is still not appreciated and acted on in Wales. This is relevant in many settings, including hospitals, and a hospital-acquired infection remains a significant concern in Wales. They wish the Inquiry to make recommendations at speed about responding to the airborne nature of the virus.

I turn now to the subject of intergovernmental relations. The Welsh Bereaved Families believe that all UK and devolved governments should have worked more closely together with a single aim of providing the most effective response that they could to the pandemic. This was in order to have the best chance of reaching agreement on policies across four nations, and where policies were different, so that they could consider the implications for each other of their different policies and co-ordinate implementation and public announcements. In some, co-ordination between nations would lead to a more effective response and better chance of saving lives.

In the evidence before the Inquiry, there has been frequent reference to a four nations approach, used to signify not just the four nations acting uniformly but also flexibility for nations to adopt different approaches whilst co-ordinating with each other. There are plenty of examples of ministers inviting and endorsing a four nations approach, but to what extent did the UK Government and the Welsh Government do all they reasonably could to promote a four nations approach?

The Inquiry has heard that at the level of health ministers, that there were meetings of the four health ministers by regular calls and that there was also a shared WhatsApp group. Mr Hancock said that this filled the gap where there had been a missing piece of institutional architecture, and it worked well. He commended the other health secretaries for their approach, saying they left politics at the door, and he referred to the warmth of their relationship. There will be further evidence on the subject in Module 2 and of the Welsh perspective on those meetings.

There was also evidence of regular close engagement through the pandemic between the four chief medical officers of the four nations. There was much evidence about how positive these engagements were.

The question must be asked, however, when the core science was the same, how were there so many differences between policies in England and Wales that were not avoided, whether in relation to mask wearing or testing or other differences in the plethora of rules after coming out of the first lockdown?

These issues will be looked at further in Module 2B, as to whether the differences were because of lack of communication or delay or delay in implementation or whether there were other reasons.

The position as between the Prime Minister and the First Ministers of the devolved administrations must be considered. Mr Boris Johnson, in his evidence, made several statements to the effect that the relationship was good between the UK Government and the devolved administrations. But Mr Drakeford pointed out that there were significant problems in the structure of the relationship at the Prime Minister and First Minister level during the pandemic. He wrote to the Prime Minister requesting greater collaboration.

The Inquiry has heard that after 10 May 2020, the UK Government decided that COBR would cease to meet regularly and it did not meet at all between 10 May and 22 September 2020. This meant that the four nations, having gone into lockdown together, when they were taking the careful steps of coming out of lockdown, the Prime Minister and the First Ministers of the devolved administrations ceased to meet on COBR as they had done previously. At that stage, and from then onwards, there were more differences in policies between the UK Government and the Welsh Government.

The Inquiry has heard that at that time it was suggested to the then Prime Minister, Mr Johnson, that he convene the Joint Ministerial Committee as a means of engagement with the First Ministers of the devolved administrations. But Mr Johnson decided not to do so. Instead, he decided, with the support of Mr Cummings, that the First Ministers were to have regular calls with Mr Gove.

The Inquiry has heard that it was considered that Mr Gove did a skilful job, but this arrangement meant that the devolved administrations’ First Ministers did not have direct contact with the Prime Minister on a regular or predictable basis. There was, as was put by Mr Mark Drakeford in his witness statements, a lack of a regular rhythm of engagement, a lack of regular check points that only the Prime Minister could provide, a vacuum at the final pan-government level.

Mr Johnson gave his reasons for making these arrangements in the way he did. In his view, it was optically wrong for the Prime Minister to meet with the devolved administration First Ministers, as though the UK were “a kind of mini EU of four nations”. He referred to wanting to avoid the risk of pointless political friction and grandstanding because of the well known opposition of some of the devolved administrations to the government and also to avoid leaks.

These were not good reasons. Mr Gove’s evidence on leaks should be noted. He said it is most important to have the “right people in the room” and that overall, in the greater scheme of things, that leaks were not a particularly significant concern.

The Prime Minister’s reasons for not engaging more directly with the First Ministers betray a lack of commitment to serious and grown-up attempts to work with the DAs. That was a wrong mindset. And that mindset was also evident from the comments of Mr Dominic Cummings when he said that it was thought that Mr Gove would handle the process of dealing with the DAs better and that, generally speaking, the Prime Minister talking to the devolved administrations did not advance any cause.

Dominic Raab in his witness statement said he found it became irritating as the pandemic went on that Scotland and Wales wanted to do things slightly differently or with different timings for what appeared to be political reasons.

It is to be observed there is a clear inconsistency in on the one hand criticising the devolved administrations for not aligning with the UK while at the same time denying them access to the decision-making process.

Mr Gove in his evidence suggested that there was a case for overriding devolution when it came to the pandemic which affected Great Britain, and whilst issues such as how much fruit to eat and so on were quite properly a matter for devolved administrations, that such a pandemic might not be. That, of course, it is to be observed, would be contrary to the footing upon which the four nations agreed their response to the pandemic from the start, which was on the basis of settled devolved responsibilities.

Public messaging was, of course, very important, and where the four nations did not have the same policy there obviously needed to have as much clarity as possible about what applied where.

The evidence has shown that the UK Government did not apply commitment to that goal, and the Inquiry has been referred to the report of Professor Henderson, where she analysed speeches throughout 2020 which showed that the UK Government did not outline the territorial scope of its information and guidance on many occasions, and also that press briefings were unclear as to when new rules applied to the whole of the UK or were England-specific.

These are things that could easily have been avoided. Evidence has also been heard about the way in which the change from the message Stay at Home to Stay Alert was handled, without again, a clear plan, to be clear, that the devolved administrations did not change their message to Stay Alert. The UK media also contributed to the confusion by failing to state when public health messages did not apply in the devolved administrations. Professor Henderson has commented on this, “These errors were avoidable”.

In our written statement, we will make observations about SAGE and about the improvements that there were in co-ordinating and providing access to the devolved administrations to the Welsh Government and how we would hope that this will be able to be further developed.

To turn to the conclusions that I wish to make on behalf of CBFJ Cymru, there will be many suggested lessons for the future and CBFJ Cymru contributes the following few points:

First, the recently reported system for intergovernmental relations between the UK Government and the devolved administrations should include structures suitable for a prolonged period of crisis such as a pandemic. In the pandemic, a formal structure for regular meetings at the Prime Minister level, plus the calls with Mr Gove, would have been a better arrangement.

Two, four nations public communications and announcements need to be conducted in a rational way, being clear as to what applies where.

Three, UK-wide science advice structures should be accessible to the devolved administrations, including attending the committees where appropriate and collaboration with the devolved science bodies.

Four, public health information and messaging should be systematically informed by the up-to-date science on infection control measures.

Which is linked to five, that there should be greater focus on identifying the whole range of relevant ways of reducing the risk of spread of infection in the community and outside the community and in hospitals, care homes, et cetera.

Six, as to the significant issues that this module raises as to how the centre of government operated in a crisis, this is not dealt with in detail here, other than to say it is clear that there needs to be consideration of structures that will produce better decision-making, of the need to draw on a wider range of life experiences when making decisions affecting huge numbers of people’s lives in major ways, and as to how politicians interact with the scientists from whom they seek advice.

Seven, there will be many lessons in the area of social care from this module, and the later modules, and that is a subject too large to attempt here. Two final points. From the perspective of Wales, as well as the above, what also emerges is that at some levels of the UK Government there was a failure to embrace the task of working with the devolved administrations. There should have been close and grown-up collaboration, which people across the UK were entitled to expect. Whether the Welsh Government did all it should have done to collaborate must be considered in Module 2B of the Inquiry, which is yet to come.

Finally, the lesson has been learned, of course, that the institutions of the UK Government were very far from equal to the task of responding to the pandemic and that this brought devastating consequences, and we will refer in more detail to that aspect in our written submissions.

Thank you, my Lady.

Lady Hallett: Thank you very much, Ms Harris, very grateful.

Mr Metzer.