8. Submissions on Behalf of the Welsh Government by Mr Kinnier KC

Mr Kinnier: My Lady, thank you.

The Welsh Government welcomes you to Wales, and in particular it welcomes the Inquiry’s examination of its decision-making during the pandemic. Scrutiny may sometimes be difficult, even uncomfortable, but it is necessary. That is because fair but unsparing scrutiny is vital to make sure that the four nations of the United Kingdom learn the lessons of the pandemic and do so effectively.

This module’s importance is obvious, but as its work begins, it is worthwhile to re-state why, and as the First Minister himself said in his statement:

“The pandemic touched the lives of everyone: my own, my colleagues, our communities, but none more so than the many families who lost loved ones. I want to acknowledge this loss at the outset … and take this opportunity to express my personal sympathies and sincere condolences, to those affected, and to all who sadly lost loved ones, across the nations. The pain and sadness of their losses will last a lifetime and I will continue to recognise this at every opportunity. Sadly, too many families have lost loved ones. This cruel virus has stolen lives, and it has left their loved ones with questions, which they rightly want answered. I would also like to take an opportunity to recognise the suffering of those who continue to live with the debilitating [side effects and] after-effects of the virus. We continue to learn not only of the impacts on our health but on our society as a whole. I, and the Welsh Government, are committed and will remain committed to this Inquiry and to learn lessons for the future.”

To that end, my Lady, the First Minister and other Welsh ministers, together with senior officials from the Welsh Government, have given statements, disclosed documents, and they will attend to be examined by Counsel to the Inquiry over the course of the next three weeks.

Fair scrutiny requires a careful examination of the evidence and analysis that was available to decision-makers and their advisers at the time the decisions were made and advice given.

As Mr Poole rightly recognised this morning, scrutiny is not and cannot be an exercise in the application of hindsight, knowing what we now know, four years or so since the pandemic started.

In answering the Inquiry’s questions, the First Minister and other Welsh ministers will set out the reasons for their decisions, and senior civil servants from the Welsh Government will explain the advice that they gave, and they stand ready to be examined on the evidence they give.

In their opening statements, the Bereaved Families for Justice Cymru, John’s Campaign and Care Rights UK and others have raised questions that fall to be answered in this and also in later modules. The precise dividing line between the subject matter of this module and Module 3 and Module 6 is for you to decide, but whichever part of this Inquiry you decide the questions are best put, the Welsh Government will continue to answer them in its statements, by its disclosure and in evidence.

My Lady, the devolution settlements in Wales, Scotland and Northern Ireland have been well established now for more than a quarter century, so Module 2B cannot be a crude exercise in comparing the Welsh Government’s decisions against those of the UK Government. England is not the standard against which the decisions of the Welsh Government, and indeed the other devolved governments, should be judged.

The Welsh Government was reassured by your statement last year that there is an obvious value in assessing decision-making across the four nations and the interactions between them. The approach you proposed last August had the advantage of reflecting how government in the UK works. In responding to the pandemic, the four governments had, for the most part, their own powers and responsibilities. Using those powers, they made the decisions that they considered to be in the best interests of their nations.

The Welsh Government is, however, concerned that the concept of divergence was used in examination of witnesses in Modules 2 and 2A, and indeed in opening this morning, which suggests that the policy of the UK Government is the benchmark against which the decisions which the Welsh Government’s decision-making will and indeed should be considered.

For that reason, the Welsh Government should be grateful for the assurance that the substance of examination will reflect the constitutional, legal and political realities of the Welsh devolution settlement.

The size of Wales, the stability of its political structures, and particularly the stability of relationships between individuals and public bodies, especially in the NHS in Wales, became a significant feature of decision-making in the pandemic. In making the decisions that affected Wales, Welsh ministers knew daily how decisions were impacting the people they serve. Well established relationships between the Welsh Government and those on the frontline of the response not only enabled a productive conversation, but also robust challenge.

The Welsh TUC vigorously advocated for the rights and safety of all workers, and importantly considered that they were listened to by ministers. That view is also reflected in the evidence of other parties from whom you will hear evidence, including the British Medical Association, the Welsh LGA and others.

Cross-party co-operation is commonplace in the Senedd, and working with local authorities with different political leaderships to the Welsh Government is the norm rather than the exception. For that reason, leaders of the Senedd opposition parties, together with representatives of other bodies such as the Welsh TUC, the Welsh LGA, the Wales Council for Voluntary Action and the police, attended the core Covid-19 group and were regularly briefed on the pandemic, the relevant data and intended decisions.

As has been commented upon by the Welsh TUC and other CPs, the Shadow Social Partnership Council was an important element that contributed to decision-making in Wales during the pandemic. Its membership was expanded and its operations were radically altered to provide a weekly forum for consultation, and notably informed an open discussion of forthcoming decisions. It was attended by a broad cross-section of the community, including the CBI, the Federation of Small Businesses, trade unions, third sector parties, and the future generations, Welsh language, Older Persons Commissioners and the Children’s Commissioner. The council had direct access to Welsh ministers and senior officials such as the Chief Medical Officer, the Chief Scientific Adviser for Health and the chief executive of the NHS in Wales. In the First Minister’s own words, meetings were challenging but constructive. The council heard in advance of publication about the substance and timing of intended decisions.

The Inquiry will rightly shine a light on the impact of the pandemic and the response on health and other inequalities. Since the start of devolution, the Welsh Government has focused on addressing entrenched health and socioeconomic inequalities through the law – for example, the Well-being of Future Generations (Wales) Act 2015 promotes equality as an objective for society – and also by policy and other funding arrangements.

From the start, the Welsh Government’s approach to and understanding of the pandemic was informed by the knowledge that every widespread disease outbreak is more likely to produce disproportionately adverse effects on those who are economically disadvantaged or suffering from some other pre-existing health condition.

Since 2010, and uniquely in the UK, Welsh ministers have been required by law to have regard to the UN Convention on the Rights of the Child in their decision-making. They were well used to doing so by the time of the pandemic, and ministers’ specific appreciation of the impact of the virus on children inevitably developed as evidence of that impact was gathered and analysed.

Throughout the course of the pandemic, the Welsh Government was acutely conscious of the impact of restrictions on all sectors of society, and ensuring that those most at risk were protected was a major and constant consideration. That imperative came into sharp focus early in the pandemic because of the emerging evidence of the differential impact of the virus on Black, Asian and ethnic minority communities. Evidence emerged from prominent clinicians who observed that Black, Asian and minority ethnic colleagues were more vulnerable to catching the disease and suffering from its more serious consequences.

In April 2020, the Welsh Government established a Black, Asian and Minority Ethnic Covid-19 Advisory Group to examine the disproportionate impact of the virus. The group had two subgroups. The socioeconomic subgroup looked at the broader context of the disproportionate impact, and on 18 June 2020 it submitted its report, whose recommendations were immediately implemented. Another subgroup developed a risk assessment tool to help health and social care workers decide whether they were at higher risk from the virus, and that too was swiftly implemented.

The Welsh Government’s pre-existing Disability Equality Forum was adapted to provide a means of communication and consultation with disabled people; a means, in Professor Debbie Foster’s words, not available to disabled people in other parts of the country.

In June 2020, Professor Foster was asked by the forum to write a report about the experiences of disabled people in Wales during the pandemic. On any view, the subsequent report made for powerful reading. The Welsh Government committed to implement its recommendations, it reaffirmed its commitment to the social model of disability, and established the Disability Rights Taskforce to implement the report’s recommendations. That valuable and necessary work, sponsored by the Minister for Social Justice, continues.

There is a higher proportion of older people in Wales than the rest of the UK, and so concern about the impact of the virus and the response on their health and well-being was of critical importance throughout. Data and modelling in Wales took account of the higher proportion of older people in the population, which in turn informed decision-making. The Older People’s Commissioner was a member of the Shadow Social Partnership Council, and in that forum – and indeed elsewhere – she was a forthright and respected advocate of the interests of older people.

My Lady, may I turn briefly to the question of informal communication and WhatsApp messages.

These have received sustained and intense interest in the Inquiry, and for that reason elsewhere. Given that interest, one point is clear and, as was indicated by Mr Poole in opening this morning, a careful consideration of the documents including WhatsApps and other messages shows that neither Welsh ministers nor senior officials used WhatsApp or indeed any other form of informal communication as a substitute for or a supplemental means of decision-making.

My Lady, the Welsh Government has addressed you in Module 2 and in writing in this module about the issues which, from its perspective, affected intergovernmental decision-making during the pandemic. As the First Minister repeatedly said at the time, there were obvious and necessary advantages to establishing a regular rhythm of meetings between the heads of government. That was not done, and it was not done because the then Prime Minister was anxious to avoid creating the impression that the UK was a federal state. That concern with appearances did not recognise, and so did not meet, the scale of events confronting all four nations.

As was also discussed in Module 2, although there was much to commend the Treasury’s response to the pandemic, equally the pandemic reinforced and illustrated the unresponsiveness of the Treasury and the restrictions of UK-wide programmes.

That problem is best demonstrated by the discussions which led to the firebreak in Wales in October 2020. The enhanced Job Support Scheme was a UK-wide scheme implemented by the Treasury due to start on 1 November 2020. Following the Welsh Cabinet’s decision in principle to introduce a firebreak in Wales, when the UK Government did not intend to take the same action, on 16 October 2020 the First Minister asked Rishi Sunak, then the Chancellor, to bring forward the start of the scheme by one week to coincide with the beginning of the firebreak in Wales. The First Minister explained why many staff in Wales would not be able to make claims on the Job Retention Scheme for that period. He even made an offer to reimburse the Treasury the additional cost of bringing the scheme forward. The request was declined due to “limitation on HMRC delivery timeline”. Quite what that meant has never been explained by the Treasury.

Mr Sunak’s recent suggestion that the Welsh Government could and should have used an upfront guarantee was never a practical possibility. The problem was not solely the amount of money provided by the UK Government, but the timing of public health decisions in Wales and the availability of operational support from HMRC. Undoubtedly Mr Sunak’s evidence will be discussed with the First Minister in due course.

Although this was a significant example of the problems that could be caused by the existing funding arrangements, unfortunately the October 2020 firebreak was not the only incidence, and the problem remains to this day unresolved. These limitations are flaws in the system, not a single point of failure. The Treasury’s unresponsiveness to the need and public health requirements of the devolved governments meant that actions taken by the Treasury to put in place interventions were based solely on instructions from central government.

My Lady, finally, may I turn to the not straightforward question of recommendations.

The First Minister has proposed two recommendations touching upon reform of intergovernmental relations and arrangements that allow the devolved governments equal and fair access to funding in the event of a future public health emergency. Undoubtedly the evidence will reveal others.

A fundamental part of the Inquiry’s work is the formulation of efficient and effective recommendations to put right any deficiencies or flaws that have been identified in the evidence. Consideration of recommendations is never straightforward, as my Lady may recall from previous experiences. At the start of Modules 1 and 2, the Welsh Government asked the Inquiry to publish details of its proposed arrangements for consideration of recommendations, and I repeat that request to you today.

My Lady, since the start of the Inquiry the Welsh Government has provided more than 100 statements and thousands of documents to the Inquiry. Over the next three weeks, you will hear evidence from the First Minister and other Welsh ministers as well as senior officials. As I said at the start, scrutiny is necessary and it can be uncomfortable, and the Welsh Government will continue to provide you and this Inquiry with every assistance, and crucially to answer the questions that the people of Wales rightly want asked.

Thank you.

Lady Hallett: Thank you, Mr Kinnier.

Please try to allay the concerns of the Welsh Government in relation to divergence. Yes, you will have heard the word, and I’ve considered it in other modules, as you indicated, but I did say something in 2A that may be of some comfort to the Welsh Government. I think I commented at one stage: just because there’s a divergence doesn’t mean that England is right and Scotland or Wales or Northern Ireland are wrong. So it’s merely recording the fact that there is a divergence; it’s not suggesting any particular nation is to blame for it. It may well be in some cases there is some responsibility attached, but it doesn’t necessarily mean the devolved nation has got it wrong by going a different way from England.

Mr Kinnier: I’m very grateful for that, my Lady.

Lady Hallett: Thank you.

Thank you, everybody. I think you must be one of the most timely groups of core participants and Counsel to the Inquiry: finished almost on the dot of the time we had expected.

So thank you all very much indeed for your submissions, they were all instructive and sensible and I shall obviously bear them all very much in mind, and of course I shall bear in mind any of the written submissions that I have received, either supplementing your submissions today or if they are instead of any oral submissions from other core participants.

So thank you all very much indeed. 10 o’clock tomorrow.

(4.33 pm)

(The hearing adjourned until 10 am on Wednesday, 28 February 2024)