3. Mr Jeremy Miles

MR JEREMY MILES (sworn).

Questions From Lead Counsel to the Inquiry for Module 2B

Lady Hallett: (Inaudible - microphone switch delay) – to ask you to come and give evidence this week. As I said to Mr Gething, I appreciate it’s not the best week.

Mr Poole: Could you start with giving us your full name, please.

Mr Jeremy Miles: My name is Jeremy Miles.

Lead 2B: Mr Miles, thank you for attending today and assisting the Inquiry. You have provided a witness statement. We can see that at INQ000389184. That was signed on 13 December last year. Are the contents of that witness statement true to the best of your knowledge and belief?

Mr Jeremy Miles: They are.

Lead 2B: In terms of your professional background, you studied law at Oxford before teaching law at Warsaw University and then practising as a solicitor in private practice. You were first elected to the Senedd for the Neath constituency in 2016, and you have been a member of a number of Senedd committees, including the Economy, Skills and Infrastructure Committee, the Culture and Welsh Language and Communications Committee, and the External Affairs Committee.

You were sworn in as Counsel General on 13 December 2017, and on the election of Mark Drakeford as Welsh Labour leader and First Minister in December 2018, you retained the role of Counsel General and assumed the new post of Brexit minister, and I understand that post was renamed a year later as Minister for European Transition, and then in 2021 you were re-elected as a Member of the Senedd for Neath, and in May of that year you were appointed as Minister for Education and the Welsh language.

Is all of that right?

Mr Jeremy Miles: It is correct.

Lead 2B: Start, if I may, by asking you some questions, then, about the role of Counsel General. And in fact before we go to that, perhaps some questions about your use of informal methods of communication, so WhatsApp and text messages.

You deal with this at paragraph 25 of your witness statement, and you say there that while the Welsh Government does not permit the use of WhatsApp on Welsh Government mobile phones, you used your personal mobile phone to send WhatsApp messages, and we have seen – the Inquiry has seen exchanges between yourself and Welsh ministers on a Welsh minister WhatsApp group and other individual exchanges of WhatsApps between other officials, for example, Jane Hutt, Helen Lentle.

Dame Shan Morgan was taken to a number of Welsh Government policies concerning the use of informal methods of communication, and also the importance of ensuring that any messages concerning Welsh Government business are maintained on the corporate record by, for example, uploading to iShare.

I suppose the first question: do you accept that it was wrong to have used WhatsApp on your personal mobile phone to discuss government business?

Mr Jeremy Miles: Well, the Welsh Government’s policy is not to allow WhatsApp to be downloaded onto Welsh Government phones, so, as you say, in my case, that was on my personal phone, my private phone, not my Senedd phone. So I was having colleagues messaging me on my personal phone effectively.

I’m not aware of the guidance I think you’re referring to – well, I certainly wasn’t previous to the hearing, the Inquiry – which was the guidance from 2009, I believe. So I was not aware at the time that we were exchanging messages that that was inappropriate or contrary to that guidance, though obviously I’ve seen that guidance subsequently.

Lead 2B: I think you make the distinction that we’ve heard a number of ministers and officials make, that you say decisions were not taken by WhatsApp. The Inquiry has, however, seen a number of exchanges involving you and ministerial colleagues that discuss Welsh Government decisions and also air concerns and confusion, perhaps, about certain policies and certain decisions that were taken during the pandemic.

Do you accept that those discussions should be retained and recorded for the corporate record?

Mr Jeremy Miles: Well, I can see that now. At the time I regarded that as chat between work colleagues and not the sort of content which I would regard as being relevant to decision-making.

I understand, of course, in the light of the Inquiry’s considerations, that there’s a broader – there’s a broader net, if you like, which captures all of that communication, but that certainly wasn’t my appreciation at the time.

Lead 2B: You say, also in paragraph 25 of your witness statement, that from time to time, I think prior to but also during the pandemic, you would manually delete or clear out messages, and that from an unknown point in time you had automatic deletion turned on for messages, which is also known as disappearing messages.

The Inquiry understands that disappearing messages could be enabled from November 2020. Are you able to assist, would that have been when you enabled disappearing messages?

Mr Jeremy Miles: I’m afraid I don’t know the answer to that question specifically. The context for this, though, is it’s my personal phone and I’d had my phone stolen in 2017 and was sensitive to having on my phone anything which somebody picking up the private phone of a public figure might be interested to read, so whether that was work colleagues’ messages or personal messages, I was in the – my practice was to delete that.

Lead 2B: Given your legal background and legal training, did it not perhaps occur to you that the events of a pandemic may one day be the subject of an Inquiry such as this, which would require full disclosure, including disclosure of such messages even on a personal mobile phone?

Mr Jeremy Miles: Well, I suppose I regarded the kind of things that were being talked about as not being, you know, public records in that sense, they were chats between work colleagues. I obviously know in light of the discussions in this Inquiry that was the wrong assumption to make, but that was my understanding at the time.

Lead 2B: Mr Gething told the Inquiry yesterday that it was a real embarrassment for him not to have access to his WhatsApps during the period that he was Minister for Health and Social Services. Is it an embarrassment to you to have deleted messages and turned on disappearing messages during the pandemic?

Mr Jeremy Miles: Well, certainly in light of subsequent events I wish I had kept them, but I just want to say the reason that I was in the practice of deleting was, having had my phone stolen a few years before, I was particularly sensitive to material being on there which, you know, somebody stealing or finding a phone in the gym or whatever might be interested in. So that’s the context for it.

Lead 2B: Mr Miles, if I turn then to your role as Counsel General, as I understand it, Counsel General is the principal legal adviser to the Welsh Government. As well as providing legal advice to the Welsh Government, the Counsel General has a role to play in: first, legislative drafting; second, protecting the devolution settlement; and, third, generally overseeing the legal aspects of government operations and ensuring compliance with the law. Is that a fair summary?

Mr Jeremy Miles: It is indeed yes.

Lead 2B: Although not a Welsh minister, as Counsel General you were a member of the Welsh Government and, as such, participated in Cabinet meetings, I understand, at the invitation of the First Minister; is that right?

Mr Jeremy Miles: Yes, it was a standing invitation under the current First Minister and, certainly in my time, under the previous First Minister as well.

Lead 2B: You say at paragraph 9 of your witness statement:

“Collective possibility applies to the Counsel General save that there are certain functions in respect of which the Ministerial Code expressly exempts the Counsel General’s functions so that he can act independently.”

That reference again, as I understand it, to acting independently of the Welsh Government, and those exemptions that are referred to there, the Ministerial Code relates to instances where you, as Counsel General, might consider it appropriate, and I’m quoting:

“… for the protection of or promotion of the public interest to defend or appear in legal proceedings and also when scrutinising Bills.”

Is that right?

Mr Jeremy Miles: Yes, it is. I haven’t personally appeared in legal proceedings but one of the key roles of the Counsel General, in the context of legislation, is to form a view on whether the legislation proposed by the government is, for example, within our legal powers, and one of the powers of the Counsel General is to refer that matter to the Supreme Court for determination. So that element of independence from the government, for example, in that context would be important.

Lead 2B: So save for that function when you’re scrutinising Bills, collective responsibility applies to you and you are bound by the Ministerial Code; is that right?

Mr Jeremy Miles: For all intents and purposes, yes.

Lead 2B: Is it right to say that legal advice that you provided to the Welsh Government is covered by legal professional privilege; that’s right?

Mr Jeremy Miles: It is, yes.

Lead 2B: However, we should be clear that for the purposes of this Inquiry the Welsh Government and Welsh ministers have agreed to provide the Inquiry with privileged material; again that’s right?

Mr Jeremy Miles: We have, yes.

Lead 2B: Now, you liaised closely during your time as Counsel General with Helen Lentle, who was director of Legal Services. Can you just briefly outline to the Inquiry the role that Legal Services performed during the pandemic?

Mr Jeremy Miles: Certainly. Well, I think it’s probably useful as context for the discussion generally to know that there isn’t a separate office of the Counsel General, so there isn’t – when I became Counsel General I considered establishing that but I couldn’t really justify, on the number of lawyers that we have at our disposal, running two different infrastructures, if you like.

So each of the government ministers has the ability to draw on a team of lawyers who are expert in education, local government, environmental law, and they all report in to Helen Lentle, who is the director of Legal Services for the Welsh Government, and therefore the most senior public lawyer providing advice to the government, and it was my practice to meet with her regularly so that we would discuss legal issues, either legal issues which were coming up across the government’s business generally or specifically in relation to Cabinet meetings, Cabinet papers, but also legislation. So I would have that periodic regular discussion so that I was able to shape the advice, test the advice, discuss what was – what I felt were the priorities for us, so I would have that relationship with Helen Lentle and I would have an equivalent relationship with the First Legislative Counsel, Dylan Hughes, in relation to the legislative programme.

Lead 2B: Am I right that the Office of the Legislative Counsel, that sits within the directorate – within the office of the First Minister; is that –

Mr Jeremy Miles: It does, yes.

Lead 2B: As you say, Dylan Hughes, he was Welsh First Legislative Counsel, and you interacted with him alongside Helen Lentle during the pandemic?

Mr Jeremy Miles: Indeed. I mean, for most days, during the most intense period of activity, we would meet, either the three of us or, you know, myself with one of them, certainly most days.

Lead 2B: The Inquiry has heard evidence already about the ministerial advice process, so namely the process by which civil servants and government officials would provide legal policy and advice to Welsh ministers. I just want to understand the role that you played in that process, obviously specifically during the pandemic. Would you have had sight of all ministerial advices produced during the pandemic?

Mr Jeremy Miles: Well, there are two capacities in which I operate here – or three probably, actually. So, firstly, the Counsel General’s office is a mandatory copy on all ministerial advices across the government. You know, many of those are not controversial and so I wouldn’t expect to see those, but of that where I’m simply a mandatory copy, I would probably see about 60% of those, and I would be able to comment on them in the usual way.

There’s another category in which I was specifically copied under the name of the deciding minister, so you will have seen a number of examples where the First Minister is taking a decision and I am copied on that. So I would obviously have seen all of those.

And then when there is legal advice of any significance or materiality in the ministerial advice – and during the Covid period obviously that was very often the case – I would either have specifically cleared the legal advice before it appeared in the memorandum – in the ministerial advice or it was based on another document which I had approved or was sufficiently close to the discussions that I’d had with the legal advisers that I was content for that to proceed.

Lead 2B: I understand.

Presumably there were instances during the pandemic when Welsh ministers came to you directly for advice; is that right?

Mr Jeremy Miles: Well, not very often. I mean, occasionally I would have someone saying “I’ve had this advice, do you agree with it?”, perhaps. “Do you think there’s another way of dealing with this?” Maybe asking if the advice was perhaps too cautious. And my practice was always to listen – if I was able to confirm that I agreed with the advice, obviously I would do that, but if there was something to take away and consider, I would often do that but do that through the Legal Services team, and so I didn’t want to establish a separate legal channel, if you like. It’s obviously important that that’s all consistent. So the response to that discussion would then come through Legal Services.

Lead 2B: As regards your role in Cabinet, you describe this in your witness statement as being twofold. You say, first, it was explaining “in simple and practical terms what the legal advice was and why, and [also] the implications … for the matters under consideration”. And second, playing “a full part in the substantive discussion and decision making process”.

Did you ever find it difficult during the pandemic to fulfil those two roles? So on the one hand being the provider of legal advice but on the other acting as a collective decision-maker?

Mr Jeremy Miles: Well, I think that my role in providing and explaining the legal advice in Cabinet during the Covid period, from recollection, at the start of the Covid period, when the Cabinet itself was developing an understanding of the basis on which regulations should be reviewed, for example, much of the work I did to explain to colleagues what the legal structure, legal requirements were, happened then.

I think over time the Cabinet obviously developed its own understanding of that, and had the legal advice in front of it generally in any event, and so I would participate in that broader discussion. So I was careful to take the two things separately.

But as we went through the – into the, you know, the months of Covid, there was more scope for that broader discussion, because I felt that the legal principles were understood by colleagues.

Lead 2B: I want to change topic and ask you now about some of the input that you had into specific decisions that were taken in the period February to March 2020 and start, if I may, with the Coronavirus Bill.

You say at paragraph 83 of your witness statement, you explain that:

“On 24 February 2020, [you] were asked to Chair a Cabinet Sub-Committee on the Welsh Government’s legislative programme in the First Minister’s absence.”

And you say:

“I recall that there was an item on the agenda about the Coronavirus Bill … being prepared by the UK Government.”

But that you were “not directly involved in the Bill at that point”. Then you say:

“… (I was to become involved soon after), but I was told by lawyers in Welsh Government Legal Services that at that point we had good input into the preparation of that legislation.”

I just want to understand, what involvement did you have in respect of the Coronavirus Bill?

Mr Jeremy Miles: At that point I was aware that we’d had the first print of the Bill I think a week before and I was aware that Helen Lentle was in regular discussion, I think, with the First Minister and the health minister about the contents of the Bill, and – at that point that was my understanding, and that was gleaned through the regular meetings and discussions that I had with Helen Lentle as part of my role. You know, after that period I think the intensity of working on the Bill increased in any event, and that was developed very rapidly through March and there were a number of issues on which I was engaged during that period in relation to some aspects of the Bill were retrospective, some aspects of it were areas in which we were able to persuade the UK Government to change their position, so some of the education provisions, there were provisions in relation to protection of tenancies, in relation to financial support. So there were a number of areas in which I had been involved subsequently, but at that point I was aware of it – of the work that lawyers were doing through my regular discussions with Helen Lentle.

Lead 2B: Would you say generally that the Welsh Government had good input into the final product of the Coronavirus Bill that then became the Coronavirus Act?

Mr Jeremy Miles: Yes, it happened very quickly but I think it was an example of good cross-government working.

There was – inevitably perhaps when you’re working to that kind of constrained timetable set by the Parliamentary timetable in Westminster, it wasn’t particularly convenient for our Senedd timetable, but, you know, in these circumstances, one accommodates that, naturally. But there were, you know, many examples – I think of policy instructions coming through and then having to be very rapidly shared amongst policy – ministerial colleagues with policy responsibilities for their inputs, and … but I do think there was good joint working and I do think that the input of Welsh Government lawyers helped shape the Bill and improve the Bill as well.

Lead 2B: I want to ask you next about school closures. The Inquiry’s heard that on 18 March 2020, the then education minister, Kirsty Williams, issued a statement closing schools for face-to-face learning. In her witness statement, so Kirsty Williams’ witness statement – which we have at INQ000362237, we’re looking at paragraph 99 – it says:

“The Welsh Ministers do not run individual schools in Wales … and I did not have the power to direct schools to close … [Document read] … to implement that policy.”

If we could just have a look, please, at the actual statement, so this is the announcement that Kirsty Williams gave on 18 March.

I think it’s INQ000349180.

I think I’m looking at the – yes, so the top of that page, starting “Today”, it says:

“Today, I can announce we are bringing … [Document read] … at the latest on 20 March …”

It then goes on to say – thank you – second paragraph down:

“Today’s decision will help … [Document read] … ahead of the early break.”

Would you agree that that doesn’t sound like a policy announcement advising that schools should close, that sounds more like a mandatory directive, and the language was “schools across Wales will close for the statutory provision of education”?

Mr Jeremy Miles: Well, I suppose I bring some experience of hindsight on this as well, having been – being education minister at the moment. The statement in Kirsty’s statement is correct. I think what the press announcement is doing is seeking to give a very clear sense of direction to the education system generally. The context for this was, from memory, that schools had, if you like, started to close themselves. This was happening right across Wales. And so my understanding of the purpose of the statement is to shape that, give a sense of direction and a sense of order to that, and so I think the language needs to be seen in that context.

Lead 2B: Now, you say in your witness statement, it’s paragraph 102, we don’t need to go to it, that you were not asked to advise on this decision to close schools and nor were Legal Services. That’s right, isn’t it?

Mr Jeremy Miles: It is.

Lead 2B: Now, although we appreciate matters were moving very quickly at this point in mid-March, Ms Williams says in her witness statement that officials were already planning for school closures and the impact on the examination system on 4 March. Are you surprised that a decision was taken on 18 March to close schools without any legal advice?

Mr Jeremy Miles: Well, I would have preferred for there to have been a legal advice taken in relation to that. There had been a Cabinet on the – a couple of days before where it didn’t feel like that decision was imminent, but I think, from memory, the position changed very rapidly in the intervening period. But I certainly think it would have been preferable for there to have been legal advice even though there wasn’t a formal exercise of a legal power.

Lead 2B: If we can, please, have another look at a separate passage of Ms Williams’ witness statement.

It’s paragraph 108, thank you.

It says here:

“On 17 and 18 March 2020, matters were moving so quickly that there was no time for officials to prepare a formal … [Document read] … sent to me on 23 March 2020 …”

So, is it fair to say that the advice that was provided was retrospective?

Mr Jeremy Miles: I think from the chronology as set out in Kirsty Williams’ statement that’s the inevitable conclusion.

Lead 2B: If we could have a look at that ministerial advice, please, it’s INQ000145342. If we can turn – it looks like quite a long document, so if we can turn to – sorry, paragraph 32 but page 7, I’m grateful. It states here:

“It should also be noted that the [Department of Education] are also experiencing a similar situation following Wednesday’s announcement. It is important to note schools have not been close, they have been repurposed at a time of national crisis … [Document read] … schools and others will respond positively to this guidance.”

And perhaps the next paragraph, please:

“We do [not] intend to take a power in the COVID-19 Bill that would give us the power to … [Document read] … scale and urgency of the emergency …”

Then if we can skip down to paragraph 37 on that same page, confirming here:

“No legal advice was sought before these statements … were released.”

Then the next paragraph, paragraph 38:

“The power to vary the dates of school holidays is a local authority or school governing body power, not a Welsh Ministers power. The relevant power … [Document read] … but Legal Services are not aware that such consultation had taken place.”

It is fair to say we know, don’t we, that local authorities and governing bodies had not been consulted prior to the announcement on 18 March?

Mr Jeremy Miles: I can’t myself tell you that I know first-hand what level of consultation had taken place.

Lead 2B: If we – same document, ministerial advice but over the page, paragraph 40, please:

“There are temporary school closure powers … [Document read] … not provide legal cover to the Minister’s announcements/statements.”

Was this a ministerial advice that you saw at the time or were you asked to contribute to this ministerial advice?

Mr Jeremy Miles: I’m trying to recollect. I think I will have seen it before it was sent to the minister, but I can’t remember specifically, I’m afraid.

Lead 2B: So it appears, from what is set out here, that the Welsh Government did not have the power to close schools on 18 March; is that right?

Mr Jeremy Miles: Yes, and what the minister is doing is giving a direction to local authorities – I shouldn’t use the term “direction” – but essentially sent, gave a clear statement of policy about what the government wishes to see and I think, from recollection, that that was welcomed because, as I was saying earlier, schools were taking their own decisions to close.

So giving it a sense of purpose and a sense that this was happening on a national basis I think was part of the rationale for that. But, as I say, there was not a power of the minister to close the schools directly but, notwithstanding that, I think it would have been helpful for legal advice to have been taken.

Lead 2B: I want to turn to mass gatherings and the legal advice that you gave about mass gatherings next, if I may. You deal with this at paragraph 94 of your witness statement. We don’t need to bring it up. Let me just read to you what you say. You say:

“By 13 March 2020, concerns had been raised about public events attended by large numbers of people, including sporting fixtures.”

And:

“… that day, I asked my Private Office to email Helen Lentle for advice as to whether the Senedd had legislative competence to limit mass gatherings.”

We can see this request. It was 13 March. It’s INQ000376453. If we go to the bottom of page 2, we see there:

“Counsel General has asked if we have any competence in relation to limiting mass gatherings due to coronavirus.”

Then if we go up to the top, we can see the advice that comes back – thank you, page 1.

So this is sent on behalf of Helen Lentle. Perhaps if I can just summarise it and then you can tell me if I’ve got it right. The advice was that any legislation passed by the Senedd to restrict mass gatherings was likely to engage reserved matters, whereas the draft Coronavirus Bill would contain powers for the Welsh ministers to regulate mass gatherings and exercising powers under the Bill was preferable in the interests of being able to act coherently and comprehensively because it wouldn’t raise any question about legislative comments. Is that a fair summary of the advice?

Mr Jeremy Miles: I think it is.

Lead 2B: Was that advice, so Helen Lentle’s advice, conveyed to the First Minister and Welsh ministers, do you know?

Mr Jeremy Miles: I don’t know.

Lead 2B: On 20 March, the First Minister requested advice on the legal powers that Welsh ministers had to announce and enforce a lockdown in Wales.

And, again, if we can just look at the request, it’s INQ000336318.

If we can have a look at the bottom email – yes, page 4. So this is the request that is made to Helen Lentle. It refers to:

“… a meeting yesterday, attended by the First Minister, Permanent Secretary, and several Welsh Ministers, the question of lockdown legal powers [was focusing then] on the Civil Contingencies Act … [refers] to emergency powers for public health crises.”

And states:

“However, we need clarity on what relevant powers Welsh ministers would have in this scenario.”

And a response, we see that in bold, on that email, a response is requested at the latest 3 pm the same day. So that email sent at 13.27, so it’s an extremely quick turnaround being requested. And we in fact see, if we go up the page to page 2 – as the first line says – so this is now 14.51. As the first line says:

“… below is a short summary of the position with regard to the current and anticipated powers.”

Again, perhaps if I just summarise the advice and you can confirm if I’ve got it right, so the powers under the Civil Contingencies Act are devolved and therefore not exercisable by Welsh ministers. Powers under the Public Health Act can be used to keep an individual or group of people in isolation, if necessary or proportionate to reduce the risk of infection, but the advice was these powers could not be applied to all citizens and therefore could not be used to lock down the whole of Wales. And then it went on to say that powers under the Coronavirus Bill could be used to restrict the movement of people if they’re potentially infectious and could also be used to direct the closure of premises and restrict gatherings; again, is that a fair summary of the advice?

Mr Jeremy Miles: Well, the advice is that the powers in the Civil Contingencies Act are not devolved. They’re reserved to UK Government ministers and therefore are not available to Welsh ministers.

Lead 2B: Indeed.

Mr Jeremy Miles: And in relation to the public health provisions, I read the email to say that the existing regulations aren’t sufficiently broad to capture the intended purpose.

Lady Hallett: I think you omitted a “not” in your question.

Mr Poole: I apologise. Thank you for clarifying.

Lady Hallett: You said they are devolved.

Mr Poole: No, sorry. That’s entirely my mistake, so thank you for correcting me.

Mr Jeremy Miles: The assumption at this point was that the civil contingencies legislation would be the relevant legislation effectively.

Lead 2B: Absolutely. And then that email chain was forwarded on to you and I think we see at the top of the page we’ve still got up “Helpful thanks”.

Again, this advice presumably was passed on to the First Minister?

Mr Jeremy Miles: I think his office is copied in on the response from Legal Services.

Lead 2B: Is that right? Certainly his senior special adviser is, Jane Runeckles.

Mr Jeremy Miles: And the head of his office –

Lead 2B: Yes. Were you asked to advise on the powers available to Welsh ministers to implement a national lockdown?

Mr Jeremy Miles: No, not beyond the advice, not beyond the commission that had gone directly to Legal Services.

Lead 2B: That advice that we’ve just seen, that we’ve just summarised, did you have input into that or was that a product of Legal Services?

Mr Jeremy Miles: That was a product of Legal Services, but I was not surprised to see the advice, because the assumption was that the Civil Contingencies Act would be relevant, although by the time we got to the end of the day the matters had moved on because of the meeting at COBR.

Lead 2B: Because, as we know, public health powers were in fact used by Welsh ministers –

Mr Jeremy Miles: They were.

Lead 2B: – to close restaurants, pubs, bars, other facilities, and also to then implement the national lockdown on 23 March.

So just casting your mind back to those two pieces of advice we’ve just been looking at, so first on 13 March that dealt with mass gatherings and then on 20 March dealing with generally lockdown, was it wrong to advise against using public health powers to limit mass gatherings and implement a lockdown?

Mr Jeremy Miles: In relation to the – to both events? Well, I think in practice in relation to mass gatherings, although I think that was on the Friday, the advice came through. On the Monday there was still the advice from the UK Government was that they were not recommending the closure – cancelling of mass gatherings. I think by the Friday, effectively on the 20th, we’d used the public health legislation, you know, to have substantially that effect, certainly in relation to certain premises.

Lead 2B: But the advice we’ve just looked at on 20 March was that, when addressing this point about public health powers, that they could be used to keep an individual in isolation but those powers could not be applied to all citizens and therefore could not be used to lock down the whole of Wales, and yet three days later those are the powers that are used to implement a national lockdown.

I suppose my question is this: can you answer definitively whether the Welsh Government had the legal powers to impose a lockdown ahead of the UK Government?

Mr Jeremy Miles: Well, I think the point in the letter, in the email of the 20th is that it’s not talking about public health legislation more generally, it’s referring to the Health Protection Coronavirus Wales Regulations that had been made. That’s my understanding. So it’s not making, I think, the broader point.

But it’s certainly the case that we had the powers in order to bring about the lockdown. We exercised those through the public health legislation of 1984, and indeed used those on the Monday ahead of the UK Government using equivalent powers when we did that to close caravan parks and footpaths.

Lead 2B: If we can have a look, please, at your witness statement, it’s INQ000389184, looking at paragraph 115, you say here:

“The Regulations I have described above were all made under the Public Health (Control of Diseases) Act 1984, and not the Civil Contingencies Act 2004 …”

You say:

“My understanding is that the decision to use public health legislation as the legal framework instead of the CCA was taken by the UK Government at COBR on 20 March 2020. The decision whether to use the CCA or not was not a decision for the Welsh Ministers.”

You then go on to say:

“As far as I am aware, the Welsh Government was never asked for our view on this legislative choice. I was certainly never consulted by the UK Government about it.”

Now, you make the point about a lack of consultation there. As Counsel General for Wales, would you have expected the UK Government to involve you or at least consult with you about the choice of legislation to respond to the pandemic?

Mr Jeremy Miles: I think that would have been preferable, but what was happening I think on the Friday, which is when I understand the decision was taken, was that there was a discussion at COBR. I wasn’t in attendance. I think that is because of the way in which COBR is convened, it’s convened at the direction of the UK Government and there’s a very limited number of invitees and I wasn’t amongst those who were invited to it.

As I say, our understanding was that the civil contingencies legislation would be the legislation that was going to be used, but during the course of that day, on the back of the conversations which took place at COBR, as I understand it, the UK Government decided to use the public health legislation. And I think if you were to look back at that decision and undertake a legal analysis, I think that makes sense because, you know, there are specific powers in the public health legislation, and indeed we were seeking to supplement that in the Coronavirus Bill which would provide even more specific powers, and what we know is the civil contingencies legislation is available in the absence of specific power, so, you know, where we have those powers it’s preferable to use them.

Lead 2B: The Inquiry has heard some evidence from in particular UK Government ministers and former ministers in Module 2 that they in fact regret the decision not to use the Civil Contingencies Act to respond to the pandemic.

In the event of a future pandemic, would you advocate in favour or against the use of the Civil Contingencies Act?

Mr Jeremy Miles: Well, I don’t know if they can, you know, if the analysis as I set out is correct that where there are more specific powers then the Act isn’t available, I think that would be challenging for them to use that, even if they wished to. But I think there is a democratic question here, which is that health is devolved to Wales, people of Wales would look to the Welsh Government to respond in relation to a health pandemic, and so it is preferable for those decisions to be in the hands of Welsh ministers. But there’s also a practical application to this question as well, which is whoever’s exercising the powers, there are a set of operational relationships which are critical to being able to deliver the outcomes which those powers are there to bring about, and I don’t think that is possible in the context of a UK Government, you know, looking at using civil contingencies legislation more generally and Welsh ministers having those powers.

Now, that’s a view which I think I have in hindsight, in a sense, having gone through the pandemic and seen how in practice this could operate, and then you ask yourself the question: well, if the assumption going into this was that the civil contingencies legislation would be the right way forward, it isn’t clear to me now how practically that could have been delivered.

Lead 2B: I understand.

Mr Miles, changing topic and dealing next, if I can, with the – first, the co-ordination dashboard and then the data monitor.

We’ve seen minutes of a Cabinet meeting of 6 April that reflects a number of new workstreams that the First Minister asked you to take the lead on. Don’t need to display those minutes.

The First Minister is recorded as referring to a paper on Covid-19 policy coordination, and informing ministers that he had asked you to provide the overarching ministerial lead on the delivery of the workstreams, and you also confirm in your witness statement that the First Minister – I think, in your words – asked you to provide the overarching ministerial lead on the delivery of cross-cutting workstreams.

Briefly unpack that for us: what does that actually mean in practice?

Mr Jeremy Miles: Well, as well as being Counsel General, I was also Minister for European Transition at this time, and had been required to work in a very cross-government way in order to prepare for the prospect of leaving the European Union, and so there were significant projects happening right across the government which required collaboration between ministers in order to deliver the outcomes that we wanted.

So I think with that context in mind, the First Minister was asking me to identify with colleagues where there were projects which engaged more than one portfolio and which then required some cross-government co-ordination effectively, so each minister had their own policy responsibilities, a number of the things we were trying to achieve engaged many ministers, so in relation to the provision of food boxes to those who were shielded or who were isolated, that engaged, you know, five or six different portfolios, and the First Minister was asking me to do two things: first, provide that overview, working with officials, on what those joint projects were, giving Cabinet an understanding of where progress was happening well and where it was challenging, and then there were a handful of particular projects where it was, I think, helpful to have a member of the Cabinet who did not have his own policy portfolio and was therefore able to bring colleagues together to resolve some particular challenges, and there were two or three of those in particular that he asked me to lead on, which I did. That entailed, you know, a number of meetings over a period of weeks with colleagues to identify the problem, identify what the solutions might be and develop a plan to do that, and then the responsibilities would be portfolio ministers’ responsibilities to make the contributions they needed to make.

Lead 2B: And the co-ordination dashboard – I’m not going to ask for it to be displayed, it’s a rather unwieldy spreadsheet, but I’ll give the reference just so that we have it on the record, it’s INQ000048968.

Can you briefly explain to us, though, what the dashboard was and how it was used in decision-making?

Mr Jeremy Miles: Certainly. So I think the first one was presented on 6 April at the meeting that you’ve referred to, and it was the product of officials across the government compiling this record of where all this activity sat, and it ranged across the entire work of the government.

So the dashboard was presented weekly, I think, for many eight weeks until things had stabilised in terms of the delivery of those projects, and then was presented on a more ad hoc basis after that, and it enabled government colleagues to have a sense of whether there were any gaps in the work that needed to be done, where the projects which we had agreed to do were, you know, on track, where there needed to be additional focus. So it was RAG rated to tell colleagues whether it was in the red, amber or green category, that would be capable of being challenged, and then each time it was presented there would be a short paper that demonstrated whether, you know, things were moving from green to red or red to amber on the key project.

So it was a way for colleagues rapidly to get a sense of where the cross-government activity was, and to bring focus to bear to moving things forward when that was challenging.

Lead 2B: And in terms of this being presented and challenges being able to be made, was this at Cabinet, was this at core Covid meetings, when was this –

Mr Jeremy Miles: This was a Cabinet paper, so it was circulated in advance to colleagues with that covering paper.

Lead 2B: The data monitor next.

Again, those minutes that I’ve referred to a moment ago, the 6 April minutes, as well as referring to this co-ordination dashboard you’ve just explained, they also refer to a new data monitor which sat alongside the co-ordination dashboard. Can you tell us what that was and how that fed into decision-making as well?

Mr Jeremy Miles: So this was a simple mechanism for providing Cabinet with data on performance against a range of objectives across the government. So my own role in relation to it was simply to put it on the agenda for Cabinet. I had no, if you like, ownership of it. It was a product of the team that we have in the Welsh Government who is there to collate data, which touched on everything from number of deaths to number of food boxes that had been commissioned, to the number of journeys on the public rail network. It covered, you know, the entirety, if you like, of Welsh life in the context of Covid so that colleagues could have a shared understanding of the picture right across Wales.

Lead 2B: I think perhaps it will assist to have an example brought up. It’s INQ000048827. So this is an example from 20 April. If we could have a look at the second page, please.

So this provides a summary of all the data that’s then grouped into six categories. You can see: “Cases & Deaths”, “Attitudes & Behaviours”, Health & Social Care”, “Economy & Labour Market”, “Shielded & Vulnerable People” and “Public Services”.

So if one wanted more information about one of those subjects then – say, for example, shielding and vulnerable people – we could navigate to the specific section dealing with that –

Mr Jeremy Miles: Yes.

Lead 2B: – and there you see more detailed data and analysis; is that right?

Mr Jeremy Miles: Yes, absolutely.

Lead 2B: Again, this accompanied the co-ordination dashboard, so this would be presented in advance of a Cabinet meeting for Cabinet discussion?

Mr Jeremy Miles: Yes.

Lead 2B: I’m grateful.

Changing topic, then, and moving to 21-day review process and your input into that.

The First Minister asked you, as I understand it, to co-ordinate the formal review of regulations; that’s right, isn’t it?

Mr Jeremy Miles: It is.

Lead 2B: Now, Thomas Smithson, who is a senior civil servant, he was asked to carry out the first 21-day review, and he’s provided a witness statement to the Inquiry. Perhaps if we can just pull that up, it’s INQ000282461, and it’s paragraph 10 in particular. Mr Smithson says here:

“The first substantive piece of work I was asked to undertake was the first review of … regulations. I did not have any team, and this became my principal task, drawing on others’ views and evidence. There was no framework or process established, with my approach guided by legal advice on the obligations in the regulations, and public health and scientific advice on the progression of the pandemic.”

Now, the Inquiry heard evidence last week from Reg Kilpatrick, he told the Inquiry that this work was undertaken under the supervision of Debra Carter, he confirmed that Mr Smithson didn’t have a team beneath him, but his evidence was that Mr Smithson had a group of people around him.

Now, my question is this: looking at what is said there about the lack of a framework or process, is that fair? Is that something you recognise, that there wasn’t at this stage, the first 21-day review, a framework or process in place?

Mr Jeremy Miles: Well, certainly from my – for the 6 April Cabinet meeting, which is the one that you were talking about earlier where Cabinet agreed that I would co-ordinate the review, through to the review happening on the 16th, although the MA went to the First Minister on the 14th, we’re talking about less than ten days for that, so I think it is fair to say that the resource which we were able to bring to bear later on wasn’t in place in that first cycle, but that was not surprising. The whole point was to establish that process, that cycle of reviews, and it was clear in that first review that we were not going to be in a position to change the regulations in any substantive way because the data wasn’t telling us anything different from the position at which we’d gone into lockdown originally, as I recall.

So my task in relation to this was to make sure that we had the legal advice being fed into the system, I was I think asked to co-ordinate the work because, as a law officer, this was something which the regulations required and the First Minister I think made the obvious link between the two responsibilities.

So providing legal advice into that cycle so that the review could take place in accordance with the regulations was critical, but then we also had, you know, meetings with the First Minister, with the permanent secretary and others where it was about mapping out what the work needed to look like, and so there were a number of – there was a meeting on the 14th, I think, the day the First Minister was sent the ministerial advice where, you know, I suggested we needed to look at the Easter review, which is the one that we were doing at the time, but also developing a cyclical systematic approach to the next sequence of three-week reviews. Some of that would be around identifying early on what candidate easements might be, some of it would be around what I was calling a kind of snag list in terms of regulations, things which might not be working quite the way they should, so that we could come back to them quickly. But then alongside that we identified the need to provide guidance, and also to have an eye on the longer term as well.

So on the back of that meeting, one of the First Minister’s senior civil servants then distilled that down into three workstreams. One was what we call the kind of nuts and bolts, which is the practical application of the regulations; one was the cyclical review; and then the third was that longer term continuity and recovery work. And, you know, at points they had a bearing one on another, as you would expect and then officials were allocated to lead on each of those three workstreams.

So as soon as we got – this probably happened before the end of the first review period, but certainly at the start of the second review period we’d developed that, at official level, regular sequence of I think weekly meetings at that point where people would come together and work through the points that needed to be taken into account for the review, drawing on all the evidence that we needed to draw on, and applying that in the context of the legal advice; and then over the subsequent two review cycles, I think, we refined the guidance which we were giving from Legal Services to officials about how to think through the mass of evidence and candidates for regulatory change and how to marshall all of that for ministers in a way which complied with the legal tests, translating the regulations into a practical set of guidance for officials to bring that together.

Lead 2B: Thank you, Mr Miles, and we’ll look at some of those documents and some of that guidance.

I think you’ve got a tendency to speed up slightly when you’re giving your answers, so I’ve been asked to just ask you to slow down.

Mr Jeremy Miles: Certainly.

Lead 2B: But I think I need to slow down with my questions as well, so it will be a joint endeavour on both of our parts.

Now, Mr Smithson says that his approach was guided by legal advice on the obligations in the regulations, which I think is a reference to legal advice given by Helen Lentle on 11 April. If we could just have a look at that, it’s INQ000349314, please. If we have a look at the second page of this document, at the ninth paragraph at the bottom – thank you – it says here:

“Ministers’ reasons for ending the Regulations in whole or in part will need to be firmly rooted in public health considerations as required by the legislation as explained above. Whilst … [Document read] … greater consideration than the public health matters.”

So legal advice, Legal Services’ advice, pretty clear here that the economy at this stage was very much a secondary concern to public health considerations.

First of all, is that a fair summary of that advice?

Mr Jeremy Miles: Well, I don’t think they’re making a policy choice, they’re describing what they think the law requires, and the consideration in the regulations is that it’s a public health rationale which needs to underpin the regulations.

So, firstly, is the regulation, the restriction, necessary to achieve the public health outcome and, if it is, is it proportionate? And there are a set of ancillary considerations which are broader than that, but that’s where ministers need to focus their efforts in decision-making.

This note was, I think, the first of a sequence of notes which spell that out in increasingly practical terms for colleagues.

Lead 2B: Looking back, and knowing what we know, and just how much lockdowns and restrictions impacted upon not only the Welsh economy but what we know now about indirect harms, for example, of lockdowns, do you agree with this advice here that primary consideration has to be public health considerations, and other considerations such as economy, economic recovery, hardship, are very much secondary considerations?

Mr Jeremy Miles: Well, this is a balance of harms in the way that you described it, and in later documents, which we published as a government, we spelled out how the legal advice fed into the broader set of considerations which we took as a government.

So there was a – I think within a very short time after this advice was given, a guide was published by the Welsh Government, which I think is pretty clearly rooted in the legal advice which we have here, but which does talk about the broader considerations as well.

So I think it is that balance of harms, and it’s critical to recognise the indirect harms of Covid and of the lockdown as well, or of those restrictions.

Lead 2B: This legal advice – and I accept what you say that this is perhaps the first iteration of a series of guidance documents and advices that we will have a look at some of in a moment – but this legal advice doesn’t refer to the impact of the pandemic on vulnerable groups or those with protected characteristics as a relevant consideration, and we know that there was no equality impact assessment carried out at this stage for this first review of the regulations.

Now, why was that?

Mr Jeremy Miles: Well, I think it was the pace at which everyone was working at this point. The document at an earlier stage talks about the importance of equality of treatment and being able to explain the differential impact of restrictions on different groups of people. So I think there is an acknowledgement in this initial document of that, and, as you will know, by the time we got to the second review that was very much more clearly set out, both in the legal advice provided but also in the papers which were provided to support the decision-making.

Lead 2B: We have a look, then, at the next review which was to take place on 7 May.

If we have a look at INQ000349494, please, we see here it sets out four steps that must be considered before a decision is taken by ministers.

If we have a look at page 2, please. So:

“Step 1 involves an assessment of the extent to which [the] restrictions are necessary to contain [the virus].”

Then:

“Steps 2 and 3 involve an assessment of whether restrictions are proportionate on public health grounds.”

And then step 4 involved an assessment of, first, the extent to which a restriction may be disproportionate and then, secondly, the public sector equality duty.

It’s right that this paper formed the basis for the next review then of the regulations?

Mr Jeremy Miles: It did.

Lead 2B: There was still at this point on 7 May no equality impact assessment carried out. Why is that?

Mr Jeremy Miles: Well, there was a high level analysis of the impact of restrictions on groups with protected characteristics, but it was not a comprehensive equality impact assessment, and I think there are two reasons for that.

Firstly, the continuing pressure on resources and the ability of the team to respond under that pressurised – in that pressurised context; but, secondly, the advice which went, with the note that you just talked about, went to – as part of the ministerial advice, and may have gone to Cabinet – I can’t now recall specifically that – talks about the need for us to put in place those equality impact assessments and acknowledges, I think, that up until this point we haven’t really been talking about significant easements, we have been maintaining that set of restrictions, and I think acknowledges the reality that as we look at what choices we can make to withdraw some of those restrictions or amend them, that set of choices needs to be more clearly guided by an understanding of the impact from an equalities perspective. And there was a discussion at that Cabinet on the second review, which was clear that we needed to get to that position very quickly, that we needed to make sure that we had that better understanding.

There was a lot of activity working separately to the discussions in Cabinet where ministers were talking to their own stakeholder groups in order to make sure that we understood from them how the restrictions were affecting them, but none of us – you know, we recognised the importance of that stakeholder engagement and the importance of hearing the voices of others in this, but clearly none of us thought that we’d got to the stage where the level of impact assessment was adequate yet at this point.

Lead 2B: I think you say in fact in your witness statement, it’s paragraph 161, that the lack of an equality impact assessment at this second review was an issue that you yourself raised with Cabinet.

If we perhaps have a look at the legal advice that accompanied the 7 May review, it’s INQ000227609. If we have a look at, on page 1, (iii). Thank you.

“At present there is very limited information on the equalities impact of proposals. Carrying … [Document read] … vulnerable in an event of a challenge.”

If we could have a look, please, at (iv), I think same page, it says here:

“Any other factor insofar as it informs that key decision-making … [Document read] … of the longer term recovery of society and business.”

I mean, that suggests that factors could only inform decision-making if they were, as it says there, complementary to and did not go against the science. Did that seem an appropriate balance, in your view?

Mr Jeremy Miles: Well, I think that – what I think the impact assessment tells you is the need, where those two things are intention, to look for ways of mitigating that and to ensure that the steps that we are taking as a government is proportionate, in the light of the impact that the restrictions will have on, you know, all cohorts of people with protected characteristics, for example. And advice had been given earlier than this, by the way, I think on the 16th, which was a sort of proportionate version of this longer form legal advice which would apply in the context of what everyone recognised to be an emergency.

So it was clear to officials, even from that first advice which pre-dates this that, you know, it wasn’t an option not to assess impact, it was a question of how you did that, and doing it in the context of emergency required a different approach from, you know, from more normal times. But by this stage we were getting to the point where we were recognising we needed to move on to the next, you know, level of depth, if you like, in relation to equality impacts in particular.

Lead 2B: You explain in your witness statement, it’s paragraph 177 – we don’t need it pulled up, thank you – on 22 May you say that further refinements were made to the process and governance arrangements for the 21-day reviews, following an update to the decision-making process document that we have just looked at a moment ago.

That updated paper, we’ve got that, it’s INQ000349505, please, and if we can have a look at page 2.

This outlines again the four steps. It notes that a similar decision-making process has been adopted in Northern Ireland, but then it says:

“For reasons that are not totally clear (because we don’t understand them), those … [Document read] … adopt this process.”

Can you help us understand, what were the problems that were being faced at this point in time?

Mr Jeremy Miles: So this document is not the next iteration of the legal advice, this document is a note which was written for me in order to have a discussion specifically with legal services colleagues on the concerns which they had raised with me, and there is a second document which is in fact an update to the one we’ve just been speaking about, but this was a bespoke note to draw this issue to my attention, and I think what the note was telling me was that a tendency had developed to look at the legal framework as being somehow additional or supplementary to the work of figuring out what easements needed to be made, what the effects of those choices would be, what the medical, scientific underpinning for those choices would be, and lawyers are indicating a concern about the two parts of the process with being too separate in their view.

So in light of this, I sent a note through my private office to Cabinet colleagues and officials to make it clear that I expected to see the framework which had been developed by legal services being the tool by which officials would collate, assess and present that advice to ministers, because the legal underpinning of the regulations is obviously fundamental to it.

Lead 2B: What was the response to your intervention to your ministerial colleagues at this stage?

Mr Jeremy Miles: I think I remember that there was a note in the next Cabinet papers or ministerial advice which acknowledged the fact that I’d expected this to happen, and I think that had been taken into account in the way the analysis was presented to ministers in the next cycle.

Lead 2B: The next 21-day review took place on 27 May. You deal with this in your witness statement, it’s paragraph 178, and you say:

“… papers put before Cabinet were prepared in accordance with the revised decision making process, and expressly considered the impact of decisions on groups with protected characteristics (even though a full IIA was not completed).”

IIA, that’s an integrated impact assessment. So again there is no formal equality impact assessment at this stage. Why is that?

Mr Jeremy Miles: Well, earlier in the week or before I’d sent that note into the system, I had also had – prompted by a request for myself for an update on how progress was going in relation to strengthening our approach to equality impact assessments – I had had a note from officials which, from memory, said that on a policy level within portfolios there was work happening which was uneven, so there was no suggestion that it was happening in every case, but that it was improved to put in place an integrated impact assessment, and that what would be the ambition was to be able to do that at a global level across the entirety of the review process, but that we weren’t in a position yet to do that because of the pressures that the team and the system were under.

But I saw in the 27 May papers evidence of, you know, an increasing focus on equality impact assessments, not the full IIA. I think this was the last of the reviews, which didn’t have that fuller assessment, and I think by the next review we were publishing alongside the reviews themselves the summary impact assessments.

So I think everyone recognised the need to move as rapidly as possible. We were getting external challenge as well at this point. So, from memory, we’d had a correspondence from one of the Senedd committees and the ECHR had also been writing to us to encourage us to publish the assessments, so there was a clear recognition that we needed to strengthen that aspect and were moving in that direction, but we hadn’t reached there at this point.

Lead 2B: Fast forwarding a little bit, you attended Cabinet on 15 October, that was to consider are the imposition of a firebreak across Wales, and you say in your witness statement you were glad to see that Cabinet was provided with an equality impact assessment.

You say at paragraph 243 of your witness statement, and I’ll just read it to you:

“I was glad to see this as I had reminded officials in late September about the need for impact assessments (as they had not always been produced for decisions on local restrictions, given the urgency with which the local restrictions had been imposed).”

So obviously what you’re saying there is that the issue about lack of equality impact assessments arose again in September; is that right?

Mr Jeremy Miles: I think it’s a slightly more – it’s a slightly different context because these were local lockdowns, so there was a question of proportionality about whether you would do a full impact assessment for each of those individual decisions, or whether you would draw on a clear understanding of what similar restrictions applied on a larger footprint would, you know, what impact they would have.

So I think by that stage we were saying, or the advice coming from me was: we’ll do a summary impact assessment across the entirety of the national regulations and the review process for that, there’ll be a set of more detailed impact assessments at a portfolio level, and by this stage a number of those had also been published as well – I think from memory there was a number in the education space, but in others as well – and the question was: at a local level was it proportionate to do a full impact assessment? I think at that point the conclusion was that that would be a challenge.

Lead 2B: You, just finishing up on this topic, say at paragraph 338 of your witness statement – this is a section of your witness statement dealing with reflections and lessons learned – you say during your time as Counsel General:

“If we were ever to face a similar challenge again in future, I would want us to establish an earlier pattern of formal impact assessments (both equality and children’s rights impact assessments, as well as socio-economic impact assessments under the new socio-economic duty).”

Do you envisage any practical methods by which this could be done in the event of a future pandemic?

Mr Jeremy Miles: Well, I think what happened probably in early June, there was a paper to the project board which I was chairing at that point which looked at impact assessments and how we could strengthen our approach to it, and there were some very practical suggestions in that about the way in which the support available to officials from our data team and others could be more, you know, clearly identified and, you know, signposted and available, on the one hand, but then a more streamlined approach informed by legal advice to how one could develop integrated impact assessments on the other.

So there were some practical suggestions in there which then led to, you know, what I think was fair to say a step change by the autumn in terms of our approach to equality assessments, and the point where we then went into the traffic light, the alert level regime from the end of the year onwards, there was a more consistent package of restrictions against which to measure those impact assessments and that was, you know, a much more streamlined approach, I think.

Mr Poole: Mr Miles, we’re going to change topic.

My Lady, if that’s an appropriate moment for the break.

Lady Hallett: Yes, of course.

We take breaks quite regularly for stenographers, translators, the rest of us, and so I shall return at, well, 3.15, and I promise you we will complete your evidence today, because I am conscious you have many other duties.

The Witness: Thank you.

(2.58 pm)

(A short break)

(3.15 pm)

Mr Poole: Mr Miles, change of topic, regulations and guidance, please.

Now, we know that regulations were obviously supplemented by guidance, and you explain at paragraph 181 of your witness statement that there was a policy issued on 22 May 2020 to help co-ordinate the approach to guidance.

If we can have a look, please, it’s INQ000349531. If we can have a look at page 4, please. Oh, we are – sorry – already there. It says here:

“With material being published online at such pace, there has … been some inconsistencies between different pieces of guidance and some confusion over ownership of the guidance … [Document read] … correct legal position.”

Now, as a lawyer, obviously that would be, you would agree, a very worrying position to be in. How did the Welsh Government end up in the position where that was the case?

Mr Jeremy Miles: Well, anything which was new or controversial ought to have been sent to me, at this point I was taking quite a hands-on approach to guidance, I think, depending on the timing of this, probably the end of May.

Lead 2B: 22 May.

Mr Jeremy Miles: Thank you. But people are working at great pace and people are amending guidance that’s already online, so it may have resulted from that.

Lead 2B: One particular aspect of guidance that I’d like to ask you about next is the so-called 5-mile rule.

At paragraph 195 of your witness statement, you say about the 21-day review on 27 May 2020:

“We agreed to change the ‘Stay at Home’ provisions to ‘Stay Local’, to allow for outdoor activity within an area local to where the person lives, providing social distancing rules were maintained.”

If we can have a look at, I think, the next – another passage, so it’s paragraph 196 of your witness statement. Thank you very much. You say here:

“Given the significance of the proposed change there would be a need for clear public messaging and Guidance on what was meant by local, while reinforcing the need for the two metre physical distancing rule to be maintained. It was not possible to legislate to define ‘local’ as it would mean different things in different parts of Wales, depending for example on whether it was an urban or rural area. A distance of five miles was proposed for the guidance, but with a recognition that this would vary in more rural areas, where people were already travelling greater distances for provisions. As this was provided for in Guidance not Regulations, we often referred to this as ‘less a rule more a rule of thumb’.”

Now it’s fair to say that this particular piece of guidance garnered quite a lot of attention from the Welsh public and the media, and the First Minister was asked questions about the 5-mile rule at a press conference on 19 June.

Now, we can see a summary of that press conference.

It’s INQ000090582.

We see – I think it’s on the second page – a question asked:

“I wonder if I could ask you for more clarity … [Document read] … of your home.”

Then the First Minister’s answer:

“So the five miles is advice, and not a rule. The … [Document read] … geographies of Wales.”

Then later on, three lines from the bottom of that quote:

“How do you know what is local … [Document read] … what staying local might mean.”

If the logic behind the regulations was that people have to interpret the rule in their own circumstances under very different geographies of Wales, do you think that suggesting a distance of 5 miles just created confusion? Why was there a need to specify a distance at all?

Mr Jeremy Miles: Well, because we had experience in the last set of reviews, the last review before this, we had provided for exercise to be undertaken locally, and had not defined what “locally” meant in that context, and that was confusing to people as well.

So in a rapidly changing regulatory environment, where you’re legislating in a novel way, in ways which touch all aspects of someone’s life, breadth can be confusing and specificity can be confusing.

I think the term that we had here was “it’s a rule of thumb”, seemed to me to be an intuitive way of communicating to people: it kind of depends on your circumstances, but if you’re asking for some guidance from us, 5 miles is a pretty good guide.

Lady Hallett: But isn’t the problem – we had this in Module 2 when I looked at some of the regulations. I’ve spent nearly 50 years as a barrister and judge in criminal justice, and I couldn’t have enforced the regulations. Some of them were extraordinarily complicated, and the problem comes when you fine people for breaching what isn’t clear. Isn’t that the problem? It’s not necessarily just the inconsistency between guidance and rules, it’s that: how can you fine someone for not being local when you haven’t defined what local is?

Mr Jeremy Miles: Well, it’s a difficult situation, isn’t it, and these are unprecedented circumstances and I think governments everywhere, certainly speaking for the Welsh Government, are trying to reconcile those, you know, competing priorities: one which is to ensure that there is a sanction so people have a sense of the seriousness of the need to comply; but on the other, you know, recognising that because it’s so broad, because the breadth of the regulations are what they are, they apply in all aspects of life, there is just a compromise in a sense.

I do think it’s fair to say that, you know, the UCL report, amongst others, said that actually the understanding of the law in Wales was comparatively positive, good, and the work that we did to red-line the regulations, at least for the benefit of lawyers and enforcement authorities, I think was also appreciated and I think was also unprecedented in the context. Because we were trying to grapple with ways in which to make, you know, what are very stringent regulations practically applicable in people’s lives and, you know, some of it is very complex.

But I think the evidence that we have here in the press conference isn’t so much about the complexity of it, it’s often about the novelty of it. People having rules, you know, brought forward every three weeks and they’re naturally thinking: what does this mean? What can I do? What can’t I do? And I think some of this is about that.

Lady Hallett: I understand all the difficulties and the pressure everyone was under, I just have this long-standing allergy to criminal offences – which is effectively what they are if you’re going to fine people – which just aren’t clear. It just seems to me wrong. Shouldn’t a government in that situation say, “We can’t go with ‘local’ because it’s just not sufficiently clear and we’re going to fine people if we think they’re not local, even if they think they are, we’re just going to have to decide on a distance”, because you can’t just leave it to individuals, to police officers, to whatever, to enforce what is an unenforceable rule, can you?

Mr Jeremy Miles: Well, the guidance was intended to give some –

Lady Hallett: I’m talking about the rules.

Mr Jeremy Miles: – direction to the interpretation –

Lady Hallett: The rules if you’re in breach.

Mr Jeremy Miles: No, I understand.

Lady Hallett: You get fined.

Mr Jeremy Miles: But the tension which we’re trying to reconcile is that 5 miles in all parts of Wales doesn’t get you to the shop that –

Lady Hallett: I know, because of the geography.

Mr Jeremy Miles: Yeah. So that’s the challenge, and it’s an imperfect context, but that’s the rationale behind the thinking.

Lady Hallett: Sorry, it’s one of my hobby horses, as you may have guessed.

Mr Poole: Mr Miles, 5 miles wasn’t chosen on the basis of any scientific evidence, was it?

Mr Jeremy Miles: There isn’t a science that says that 5 miles specifically is the right distance, but the science does support the view that, you know, limiting travel long distances is positive in terms of limiting transmission.

Lead 2B: If we could just have a look at the advice given to Cabinet in respect of this policy.

INQ000215411, yes, page 5. Thank you very much.

It’s the bottom paragraph. I am going to pick it up five lines down on the right-hand side:

“Setting a specific distance in regulations … [Document read] … allows for reasonable interpretation.”

Then if we can turn over the page, please, page 6, first paragraph:

“There is no specific evidence … [Document read] … such as rurality).”

So effectively it looks as though 5 miles was chosen by the Welsh Government in order to align with what had been introduced by the Scottish Government; is that fair?

Mr Jeremy Miles: Well, I think the points that we’ve just been discussing about whether it’s possible to define more precisely in legislation is, you know, even more critical if we acknowledge, as we do, that there isn’t science that says that 5 miles as opposed to 5.1 miles or 4.9 miles is the right distance.

So what you’re trying to do is find a distance which is defensible, because it allows people to go about their daily lives and do the things that we want them to do without putting yourself in a position where there are no restrictions. So it’s that practical balance that we are trying to strike.

Elsewhere during the Covid time there were calls for governments not to choose rules and regulations and distances and measurements which were different from other governments just for the sake of it. So I think this is a sense in which we are looking at what another government has decided and thinking: well, this feels like it might be workable for us here in Wales. Is it? We think it is, then we’ll go with it.

Lead 2B: Another point arising from this same piece of advice, if we can have a look at page 4, and I think it’s the penultimate paragraph. So this is now dealing with 2-metre social distancing, and I’m picking it up six lines down, please, where it says:

“It appears that most people believe … [Document read] … being seen as optional.”

It suggests there that reliance was being put on the public not actually appreciating the difference between regulations and guidance; is that right?

Mr Jeremy Miles: Well, it’s recognising the reality that 2-metre physical distancing had been, you know, perhaps the single most identifiable Covid requirement from early on, and it had become so entrenched in people’s understanding of what they needed to do that people had assumed it was law. You get to a point where, if you’re going to say “Actually we’re now going to legislate”, it changes that understanding, and what became clear to us over the course of the months in 2020 was that we needed to have a set of, you know, behavioural responses which people could intuitively understand and feel were reasonable, sensible and they could, you know, they could comply with. And so that’s what’s beneath this: people were responding to that, despite the fact it was in guidance not regulation, so why would you take a step which risked undermining that? Because of course in Wales the 2-metre physical distancing wasn’t, from an individual’s point of view, the subject of enforcement.

Lead 2B: I understand.

I’d like to change topic now and ask you some questions about border issues.

In October 2020, there was an issue that arose whereby those living in high prevalence areas in England were not legally prevented from entering areas of low prevalence in Wales, and this is something that the First Minister wrote to the then Prime Minister about – and we’ll look at that with the First Minister tomorrow – but legal advice was sought as to what the Welsh Government could do about this in the event that the UK Government was not willing to act.

If we can have a look at that advice, it’s 12 October.

And it’s INQ000349939. If we can have a look at paragraph 5, thank you:

“… Welsh Ministers have power to make … [Document read] … could constitute an offence.”

Were you sighted on this advice?

Mr Jeremy Miles: Yes.

Lead 2B: And you agree with the advice that was given?

Mr Jeremy Miles: Yes.

Lead 2B: The firebreak prevented travel to and from Wales without a reasonable excuse but, as we know, the firebreak was only in place between 23 October and 9 November 2020. On exiting the firebreak, the Welsh Government did decide to legislate in the way envisaged in the advice we’ve just looked at. That decision, however, was not taken until 2 December, the firebreak obviously ending on 9 November.

Given the concerns about the rapid rise of infection levels coming out of firebreak and how that might have contributed – be contributed to by this migration or travel from high prevalence areas in England into Wales, why was this not legislated for sooner?

Mr Jeremy Miles: Well, we legislated for Tier 3 restrictions – sorry, for areas that were in Tier 3 limitat – restrictions in England for travel to and from those areas to be – to be restricted in Wales, so that, you know, people travelling into Wales for that purpose would be committing an offence. I don’t recall at this point why that decision wasn’t taken sooner, but I would be very happy to consult – to reflect on it.

Lead 2B: If we can return to this – yes, it is this document – so this is the legal advice on 12 October. We’re now looking at a slightly different point, it’s paragraph 13. It says here:

“There is one further which matter which needs to be considered … [Document read] … given the absence of statutory provision in Wales.”

As I understand it, Cabinet didn’t decide to make self-isolation a legal requirement until 29 October; that’s right, isn’t it?

Mr Jeremy Miles: At some point in October certainly, yes.

Lead 2B: Again, why – this advice on 12 October, why wasn’t that actioned sooner than it was?

Mr Jeremy Miles: Well, this is just telling us what the current disparity is. I think it’s likely what will have happened is after Cabinet those proposals will have been developed in light of this advice.

Lead 2B: Changing topic again and dealing now with the effect of differing restrictions in England and Wales, the Inquiry’s heard evidence that there was that problem with public health communications during the pandemic in respect of clearly outlining and informing members of the public which were, say, UK-wide rules, English-specific rules or Welsh-specific rules.

You wrote to the UK Attorney General, Suella Braverman, on 13 May about this. We don’t need your letter up, but I’ll just quote. You say:

“… I urge you to take steps to ensure that your government … [Document read] … England and in Wales.”

That’s 13 May. Was that letter prompted by the UK Government’s announcement on 10 May that it would be changing its public health message from stay home to stay alert?

Mr Jeremy Miles: It was, and the message was, you know, perhaps inevitably broadcast into every, you know, home in the UK without it being clear that these were restrictions which – sorry, these were changes which were applicable to England only, and we were concerned at a development which subsequently came to pass, which is, you know, significant numbers of people crossing into Wales, driving into Wales for leisure purposes and in doing so breaching the regulations in place in Wales.

Lead 2B: So that was your letter of 13 May and, just for the record, that’s INQ000349454.

You received a response to your letter on 5 June – again I’m not going to ask for it to be displayed, but it’s INQ000349548 – and Ms Braverman said in response:

“Your letter also encouraged me to take steps to ensure that the UK government … [Document read] … lockdown in England and in Wales.”

So this is now 5 June. Did you see an improvement in the clarity of UK Government public health messaging, having raised this issue with the Attorney General?

Mr Jeremy Miles: I don’t think I could say that I did particularly, no.

Lead 2B: We’re going to look at enforcement of legislation, regulations and the topic of fixed penalties in a moment, but leading into that topic, you had cause to write to the UK Attorney General again on 29 June and perhaps if we could see that, it’s INQ000349651. The second paragraph, you say:

“I have become aware of the recent review … [Document read] … interfacing with the justice system.”

So it would appear, therefore, that the police on both sides of the border were confused which regulations applied in England and which applied in Wales; would that be fair?

Mr Jeremy Miles: It would.

Lead 2B: What was done to address this?

Mr Jeremy Miles: From memory, the next letter from the Attorney General tells me that she had been in contact with the College of Policing, as I understand it, and what we were doing as a government in Wales was to make sure that, you know, the tools which we have, which don’t reach into homes right across the UK in terms of the communications, were, you know, being deployed in order to minimise the risk of this. So we had at various points signs on motorway – on the side of motorways telling people that, you know, there were different restrictions in Wales, but also using or social media channels, the First Minister’s press conferences, announcements and so on, to make it clear what the law was in Wales and also working through our channels with the police in Wales to make sure they understood, you know, in as near real time as possible what the changes were in Wales. But, you know, the scale of the changes that we were bringing in on both sides of the border and the rapidity with which that was happening inevitably is going to create some confusion, but it’s the task of governments to minimise that.

Lead 2B: The response you refer to from the Attorney General, just again for the record, it was a letter of 28 July, and it’s INQ000349748. And in terms of those incorrect police charges, I think Ms Braverman said that mistakes were still being made but this had reduced in number.

Let’s move on, then, to the topic of enforcement during the pandemic. I suppose the first question: why was it felt that criminal sanctions were necessary for breaches of the regulations?

Mr Jeremy Miles: It was felt they were necessary because of the implications on public health of regulations not being complied with, and we felt that the fixed penalty regime and the levels at which they were set in Wales were a proportionate way of doing that but also would signal the severity and would provide the deterrent we hoped in doing so as well that, you know, they were important behaviours that people needed to comply with in order to keep one another safe.

Lead 2B: You say at paragraph 192 of your witness statement, if I just read that to you:

“The UK Government increased the sums payable under the Fixed Penalty Notice regime for breach of coronavirus restrictions, with sums increasing rapidly after a first … [Document read] … I exhibit[ed] the document …”

If we just go to that ministerial advice, please.

It’s INQ000145221.

Looking at the fourth paragraph:

“There has been an increasing call from both Police and Crime … [Document read] … in Wales which is making enforcement difficult.”

Did you recognise the concerns expressed in that paragraph?

Mr Jeremy Miles: Yes, I think so.

Lead 2B: A decision was taken in Wales to increase the fines to £120 for a second offence, and that was then to double for each further offence to the level of £1,920 for a sixth or subsequent offence.

Now, that was different to England, England had an upper limit of £3,200; different again to Scotland, which obviously shared the border with England, that had an upper limit of £960.

What was the rationale for Wales setting a different limit to England and a different limit to Scotland?

Mr Jeremy Miles: Well, just to say this wasn’t the point at which the fine rose to £120 for the second offence, that was prior to this. But the advice in the – in this document also, I think, told us that there wasn’t a particular case which suggested that parity was compelling, and – but that there was a case for increasing fines in order to be able to meet the objections – meet the objectives which the police and others were telling us were real.

So this was a decision taken by the First Minister, it’s obviously the culmination of correspondence between his office and the police – policing in Wales, through the Commissioners and the chief constables, and it seems to me the advice doesn’t make a compelling case for the entirety of the increase but makes a pretty strong case for an increase, and I think that’s the balance that was struck in the First Minister’s decision.

Lead 2B: Organising an unlicensed music event in Wales had a penalty of £10,000; breach of passenger information regulations, a penalty of £4,000; and failing to isolate following international travel from certain countries abroad, a penalty of £1,000.

In light of the civil libertarian issues, the public health context, and the fact that these fines were being produced and imposed for breaches of social movement, in your view, were the level of fines in Wales proportionate?

Mr Jeremy Miles: Well, these were difficult questions and judgements to reach. I think overall they were. The £10,000 fine for the unlicensed music event, the risks which would arise from such an event were so considerable that we felt that it was acceptable to have a notice at that level, because of course there were court proceedings available if an individual didn’t wish to accept the notice. And it was a matter of days, I think, after the decision was taken that there was a – there’d been an example in the days preceding this decision for the £10,000 fine, and I think a day or so after there was an event – as it happens, in my own constituency – which I think the fine was levied at then. So we felt that was such an egregious risk to public health that a fine at that exceptional level was merited.

Lead 2B: Can we have another look at your witness statement, INQ000389184, this time paragraph 193. You say here:

“On 23 May 2020 I was copied in to an MA that was sent to the First Minister … where the First Minister was asked to designate Chief Constables in Wales to permit them to bring proceedings for offences under the Principal Regulations and to agree to a request by the Attorney General to make such proceedings ‘specified proceedings’ so that the police could prosecute them under the Single Justice Procedure. This was agreed, and letters to each of the four Welsh police forces designating them for this purpose were signed by the First Minister.”

Now, the single justice procedure is a legal procedure in England and Wales that allows certain low level criminal cases to be dealt with without the need for a full court hearing.

Now, what was the rationale for agreeing to the Attorney General’s request to use the single justice procedure for breaches of coronavirus regulations?

Mr Jeremy Miles: I think, from memory, it was the pressure on the courts system for the number of offences that were coming through and potential for that to increase in the future, and I think, mindful of the availability of full court proceedings as an alternative, that will have been the basis of the decision.

Lead 2B: You refer in your witness statement to a rapid review of fixed penalty notices.

Mr Jeremy Miles: Yes.

Lead 2B: That was undertaken on 6 October 2020. We can see that, it’s INQ000349910. Who undertook that review?

Mr Jeremy Miles: So I think the document that I’m looking at now was not the product, which I don’t think – which came to us as ministers. I think this was the internal document for officials, I think. It was undertaken by one of the officials in the Welsh Government.

Lead 2B: We can have a look at this first page, there’s a detailed analysis there of fixed penalty notices issued in Wales between 27 March and 21 September 2020.

If we could have a look, please, at page 12 of this document, if we go to the – I think it’s the fifth paragraph, the review concluded:

“The picture painted above is deliberately stark … [Document read] … fear being fined or prosecuted for caring for others.”

Now, one of the things noted in this paper is that the mass protests that were taking place across the country, for example Black Lives Matter, were not resulting in mass issuing of fixed penalty notices. So that’s some context for what is said there.

If we can have a look, please, over the page, page 13, first paragraph:

“Such inconsistency risks totally undermining the cultural norm of British Society which … [Document read] … feel is reasonable for them to do and legitimises an individual approach to the rule of law and to justice.”

Then the same page, last paragraph, please:

“The genie is very much out of the bottle and for the public sector to regain the confidence of the public … [Document read] … a new approach needs to be developed.”

Now, the right to protest, there’s an obvious balance between the individual right to protest and the government response to public health emergencies.

Do you assess that the use of regulations and the operational activities of the police in Wales, that balance was correctly struck? And I’m thinking with particular reference to Black Lives Matter protests, June 2020; there were then protests later, I think it was April 2021, calling for a quicker relaxation of the rules.

Was the balance correctly struck, in your view?

Mr Jeremy Miles: Well, we wanted to make sure, I think, that – or the police wanted to make sure that the right to protest was, you know, a real right. These are difficult balances to strike and judgements to reach. Just to say the text in this document is not one which I think I’ve seen before, and the last sentence talks about a new approach needing to be developed and I think at this time in our approach generally we were taking a different approach, which was around, as I mentioned earlier, moving from a model based solely on regulation to one which is more behavioural and intuitive for people. So I think that that point was being borne out in government thinking more broadly. But there is – you know, it is a difficult balance to strike, I think.

Lead 2B: There was a further review of fixed penalty notices carried out in November 2020.

If we can have a look at INQ000350014.

Again, was this – similarly to the last document we looked at, was this something that you’ve seen or was this at a lower level? Was this just for –

Mr Jeremy Miles: This I have seen. I believe that the earlier document was – led to this, but I didn’t write it so I can’t vouch for it.

Lead 2B: No, I understand.

If we can have a look, then, please, at the second page, paragraph 12, beginning there “Key findings”, it sets out the key findings.

So it’s fair to say that this review had identified a number of concerns that remained at this stage, so this is November 2020. Those concerns included disproportionate impact on those with protected characteristics, whether cases were in fact being correctly charged and reliance on enforcement officers to determine what is a reasonable excuse.

Just focusing on a particular aspect of those concerns, if we can have a look at subparagraph b on page 3. Thank you. So “grounds for concern” were expressed here about the extent of the disparity in the distribution of fixed penalty notices based on protected characteristics.

Did the Welsh Government recognise this disparity in the distribution of fixed penalty notices?

Mr Jeremy Miles: Yes, and it was something we were concerned about, and I know that it’s something which my ministerial colleague with responsibility for the relationship with the police was raising in discussions with them as well.

Lead 2B: Is that Reg Kilpatrick?

Mr Jeremy Miles: No, that will have been Jane Hutt.

Lead 2B: Can you help us with what actual steps were taken, particularly in regard to the concerns we see set out there?

Mr Jeremy Miles: Well, this led to a – this document, I believe, is appended to advice to ministers to advocate for a different approach in relation to fixed penalty notices for a small number of offences. So one is the one which you’ve talked about already, which is unlicensed music gatherings; another is, from memory, self-isolating after travel; and there were some business offences as well. And this is the product of the review which underpins the advice to ministers which led to some changes being made.

Lead 2B: Let’s perhaps focus then on the £10,000 fine for unlicensed music events, because we can see at page 5, paragraph 20, there is recognition there that £10,000 remains an exceptionally high sum for any individual or business.

Then the next paragraph, paragraph 21, just to summarise what’s said there, effectively the police wanted to retain the ability to impose a £10,000 fine.

And if we can go over the page to paragraph 22, there’s a recommendation to remove the £10,000 fixed penalty notice for unlicensed music events:

“… and communicating to the police that that we consider these offences are so serious that in some circumstances they do warrant prosecution, notwithstanding the operational imperative to minimise those circumstances.”

The ministerial advice I think that followed on from this review explicitly recommended removal of the £10,000 fixed penalty notice for unlicensed music events, and to be replaced with a requirement for criminal prosecution.

I don’t need that advice displayed, but just to read from it:

“Legal services considered that any step to ensure that such events are enforced by means of prosecution rather than simply a fixed penalty would appear to be a proportionate one, notwithstanding the potential deterrent effect of having a large fixed penalty.”

Do you recall the First Minister in fact sought your views on this issue?

If we can have a look at INQ000350094, please.

I think we’re looking at the second from last email that was sent, so it was sent on 19 November. Thank you.

“… the First Minister does not feel able to agree in principle to the amendments … without some further discussion. He has asked for:

“1. The view of the [Counsel General].”

Your view.

Then we see your advice in the next email up the chain – thank you, yes – so second paragraph there:

“On the unlicensed music events, following further information … [Document read] … retained (contrary to the advice in the MA).”

So this is an example of your advice differing from that presumably with legal services that informed the advice in the ministerial advice; is that right?

Mr Jeremy Miles: Yes, the advice from legal services was one in which they were saying that there was a recognition in the advice that court proceedings were available, and that’s the point that’s being echoed in my comment here, and I’m giving weight to the deterrent effect of a penalty set at that level for an offence which generally speaking it’s hard to commit, you know, inadvertently.

The theme, completely understandably, underpinning the review was some of the offences for which people are being fined are the ones which are perhaps easier to spot, but are they the most egregious? That was the theme in the advice, and it seemed to me that here we have an offence which it’s very hard to commit by accident and is particularly egregious, and so the deterrent effect, coupled with the availability of court process, which is obviously essential, struck the right balance, and that’s the view which the First Minister then took as well.

Lead 2B: Returning to the issue we’ve touched on upon the single justice procedure, that was revisited in January 2021 when UK Government officials contacted Welsh Government officials to ascertain whether the Welsh Government intended that prosecutions under various sets of regulations would take place under the single justice procedure.

There was a ministerial advice prepared on the issue.

If we can see that, it’s INQ000145526.

We can see from that first page it was sent to you. We can see the summary, Welsh Government had been asked whether it wants Single Justice Procedure to apply to fines under the Welsh regulations.

If we can have a look, please, at page 3, paragraph 9:

“In practice, though, we know that decisions on whether to … [Document read] … as they are non-custodial offences …”

Then skipping a sentence:

“This will generate significant pressure … [Document read] … a reasonable excuse for their actions.”

Now, please, the next paragraph, paragraph 10:

“We are aware at least anecdotally from media reporting of offences being brought under the SJP … [Document read] … police had failed to provide signed statements.”

The advice was that the single justice procedure should not be applied to fines under the Welsh regulations, and I think you say in your witness statement that you agreed with that advice?

Mr Jeremy Miles: Yes, but the premise for the advice was that we were seeking data and information enabling us to evaluate whether this analysis, which it’s described here as being anecdotal, was in fact the case. So that was the underpinning for the decision. We are not able to form our own view in Wales of the enforcement implications in relation to offences which we are ourselves legislating for, and so being asked to make a decision in the absence of that isn’t the right approach.

We also understood that this had been an active decision under consideration by the UK Government for some weeks, I think months, at this point and this was a request being made of us with a matter of days to go, which we felt there was a case for having more information so that we could reach a concluded view, and in the absence of that that this was the right approach.

Lead 2B: I understand, and on 8 February 2021 the Lord Chancellor and the UK Attorney General wrote to the First Minister. We see that letter.

It’s INQ000104062.

If we can have a look at the second paragraph, please, essentially this says that, despite the concerns raised by the Welsh Government, the UK Government had decided to continue to use the Single Justice Procedure across England and Wales.

Now, you describe this as an extraordinary letter in your witness statement. Now, given that criminal justice matters are reserved to the UK Government, why did you find this letter to be extraordinary?

Mr Jeremy Miles: Because a set of legitimate concerns had been raised and had been dismissed and overridden without providing the evidence and data which the First Minister had very reasonably asked for.

Lead 2B: We have a look at the second page, third paragraph please. Well, yes, third bullet point. It starts “Police Forces …”, thank you:

“Police Forces, through the National Police Chiefs Council … have also taken steps to address concerns around disproportionality and mis-charging.”

Were you of the opinion that enough had been done to ensure that the Welsh Government could have confidence in the SJP?

Mr Jeremy Miles: In what sense?

Lead 2B: In the sense that you’re being told here that the UK – by the UK Attorney General and the Lord Chancellor, that steps had been taken to address concerns about disproportionality and mischarging, and we obviously looked at the data that had been collected in the ministerial advice that formed the view that the SJP should not be used within Wales in respect of fines under the regulations.

So my question is simply: when you received this letter, were you satisfied that enough had been done to quell those concerns?

Mr Jeremy Miles: I think the point is we hadn’t been given the information which we’d been asking for and which seemed a very reasonable request that could have been met and wasn’t.

Lead 2B: Having discussed the matter with you, the First Minister responded to the Lord Chancellor and the Attorney General, that’s a response of 2 March.

We see that, INQ000350632. If we have a look, please, at the second page, third paragraph from the bottom – yes. “There is”, thank you.

“There is still no practical option … [Document read] … are properly taken into account.”

Now, without going into any arguments about the pros and cons of devolution, what were the practical implications of the Welsh Government being able to make a law but having limited powers about the methods of prosecuting those offences?

Mr Jeremy Miles: Well, it seems to me right that the ability to make legislation as a government and the ability to enforce that legislation go hand in hand, because there are interdependencies between the two; we touched on some of them in the discussion that we’ve had today. But this paragraph in the First Minister’s letter I think recognises the complexity of being in a situation where, you know, fixed penalties are a proportionate response to the kinds of offences that we’re talking about, but they do come with other challenging implications, as the letter sets out.

Lead 2B: Had the Welsh Government not wanted the single justice procedure to apply to fines under the Welsh regulations, it could have withdrawn from the police in Wales the authorisation to prosecute those offences, so effectively leaving all prosecutions in the hands of the CPS. Realistically, was that an option?

Mr Jeremy Miles: Well, it was an option that was considered in general terms but then decided against, because we were fearful that would send the wrong signal around confidence in the police to manage the process which was being described here, and we felt that would be undermining and decided against it.

Lead 2B: Changing topic and moving to my last topic, which is about future recovery, Mr Miles.

It’s right, isn’t it, that you were tasked with co-ordinating work on preparation for future recovery?

Mr Jeremy Miles: It is.

Lead 2B: On 20 April 2020 Cabinet met and considered a paper entitled “Response to Covid-19: preparation for future recovery”. I don’t need that displayed. That paper drew on work that you’d been asked to undertake.

Now, just by the date of that paper, that’s 20 April 2020, work for recovery therefore started very early in the pandemic.

Now, whilst obviously no doubt you do need to prepare for recovery, do you think that work began too soon?

Mr Jeremy Miles: This took a different form at this stage. We wanted to make sure that the choices that were being made around the regulations and the removal of restrictions, you know, that we understood the impact of that on policy thinking into the medium term as well. There was a set of implications which the necessary diversion of energy and resource within the Welsh Government to respond to Covid was having on the government’s other activity and priorities, and so we needed to understand what that meant. So that’s how this began.

There were two strands to this. One was a set of meetings that I would chair with officials to make sure we were cognisant of that and the implications of lifting the restrictions on those policies, on the one hand, but then separately an external process which involved somewhat later, a few weeks later than this, I think, a set of external experts testing our assumptions on what this meant, which actually was very helpful and useful, and then, you know, bore fruit later on.

So I think it was a proportionate way of planning for, you know, a better time without making any assumptions about when that would arise, because at this point clearly we didn’t know.

Lead 2B: You say external experts, so experts out of the Welsh Government?

Mr Jeremy Miles: Yes, so the form-up which it took was a set of six roundtables initially with ten experts per roundtable – some of them were from overseas, some of them were from Wales, none of them were in the Welsh Government – testing our approach to policy and what we felt as a government would be an appropriate policy response to some of the challenges and pressures and changes that Covid had brought about; and then that was distilled down to a group of four people who really helped us deep dive into some of those challenges and there were maybe three or four, five of those meetings. That led to a publication in the autumn which set out our priorities for how we would respond to the consequences of Covid on young people, on old people, on some of the more marginalised socioeconomic communities, on black, Asian, minority ethnic communities.

So that was the purpose of that, and, you know, many of those interventions have since been taken up or are in development.

Mr Poole: Mr Miles, they’re all the questions I’ve got for you, but there are some questions from the core participants.

Lady Hallett: Mr Straw, I think you have a couple of questions of your own, and you’re going to ask one for disabled people’s organisations.

Mr Straw: Yes, thank you very much.

Lady Hallett: Thank you.

Questions From Mr Straw KC

Mr Straw: Good afternoon, Minister, I represent John’s Campaign and also Care Rights UK.

You discussed earlier inconsistencies and confusion in respect of guidance in particular in May 2020, and a number of stakeholders such as the Older People’s Commissioner have complained that regulations and guidance, particularly for people needing care and older people, was confusing and contradictory.

Could you explain, what were the problems or the factors that led to the guidance being confusing and contradictory?

Mr Jeremy Miles: Well, I think it’s a matter of judgement whether people find the guidance confusing and contradictory. Our objective as a government was to seek to make sure that regulations which were often necessarily complex could be understood by people, whatever their situation, through guidance which was more accessible and a set of FAQs which was intended to be very helpful. There will have been occasions on which we didn’t achieve the fullest extent of our ambition, but that was certainly what we aimed to do and, you know, my involvement was quite hands-on at points in the guidance with a view to seeking to achieve that. I’m sure we didn’t always strike the right balance, but that was certainly our intention.

Mr Straw KC: For the purpose of learning lessons, in light of those concerns that had been raised, the complaints that there was this confusion, what should be done better next time to ensure that guidance is clearer and more consistent?

Mr Jeremy Miles: Well, I think the situation improved over time within the period of Covid, we learned lessons as we went along, I think. I think there is a larger reflection, which is that a trajectory of the virus which started necessarily with a regulatory response, which then takes you into the territory of: what can I do, what can’t I do, and sometimes fine distinctions which can be hard to explain, inherently. The longer people live with that way of organising their lives and society, I think the more challenging it becomes, and I think, as I was mentioning to Mr Poole earlier, by the time we’d got to the latter stages of 2020 we recognised perhaps that, you know, a simpler, smaller number of messages would be more appropriate for that point, you know, taking into account the experience people had had for the last six, seven, eight months. So we sought at every point to try and learn those lessons.

Mr Straw KC: To pick a systemic example of a potential lesson to be learned, was there a single person within government who had clear responsibility for ensuring that guidance was consistent, readily understandable, and if not do you agree that there ought to be?

Mr Jeremy Miles: Well, I think in practice lawyers were very heavily involved in sort of writing of the guidance as well, including me as the Counsel General, so I wasn’t the person responsible for the entirety of the output, but there was a recognition that the sorts of judgements we were making both in terms of the regulations but also in explaining the regulations, you know, was raising questions as we went along which needed to be answered and refined.

So I’m not sure I know enough about the structure which officials had for marshalling inputs and comments and ownership of that process, but I think it generally worked well, but there will obviously have been exceptions.

Mr Straw KC: Okay.

A different topic. You say at paragraph 234 that the pandemic exacerbated existing inequalities and the most vulnerable had been the hardest hit.

The impact of the pandemic and its response on social care was devastating. For example, in the first three months of the pandemic, about 39% of deaths in the UK involved Covid-19, were deaths of care home residents.

When you said that the most vulnerable had been the hardest hit, were you referring to this group among others?

Mr Jeremy Miles: There were a number of groups whose situation, whose experience was exacerbated by Covid. Much of the work that I was doing in the future recovery work, you know, was very much rooted in that recognition that there were, you know, the burdens and impact of Covid certainly had not been equally borne by everyone in society, and some of our response to that in the medium term and longer term aimed to take that into account, and to learn those lessons as we went, in the way that you were asking me about earlier.

Mr Straw KC: Also at paragraph 234 you referred to the October 2020 government reconstruction plan, and that plan at page 12 states:

“Respondents highlighted the importance of increasing the status of social care and recognising the contribution made by paid carers.”

Does that indicate that at that point social care wasn’t given sufficient status, and the contribution made by carers had not been properly recognised?

Mr Jeremy Miles: No, I don’t think that would be an accurate way of summarising that point. I think it was a recognition that more could be done by a government that was committed to supporting the social care sector. I’m not the social care minister, so I’m not best placed to answer the detail of your question, but I don’t think the way you’ve put it would be a fair reflection of the government’s assessment at that time.

Mr Straw KC: Moving on, at paragraph 154 you note that on 5 May 2020 you convened a meeting of ministers to consider the non-shielding vulnerable cohort.

Now, concerns have been raised that people from this cohort, such as people with dementia, were prevented by the operation of regulations or guidance from accessing essential care and informal support, which was of huge importance to them.

Just to give a specific example, the 5-mile guidance that you mentioned earlier, there were reports in January 2021 of Welsh police fining a daughter for visiting her 94-year old mother with dementia in a care home that was 7 miles away.

Do you accept that there were shortcomings in the regulations and guidance in respect of this cohort?

Mr Jeremy Miles: We did amend the regulations in order to support members of the public to go visit family members outside the 5-mile rule of thumb, you know, drawing on the kinds of experiences no doubt that you’ve mentioned today, so there was a recognition early on that we needed to adjust some of the regulations in order to reflect that, certainly.

Mr Straw KC: The last question – and, my Lady, this is the disabled people’s organisations’ question – one of the workstreams you were responsible for was mitigating digital exclusion for vulnerable people. Disabled people experienced higher levels of digital exclusion than non-disabled people. See, for example, there’s a report by Watson and Shakespeare which is in the bundles.

Could you explain what work was done, if any, to mitigate the impacts for digitally excluded disabled people of the increased shift online of access to key information and services?

Mr Jeremy Miles: Well, I accept the point, the premise of your question. We recognised that very early on, and in the work in particular that I was doing, which I’m best placed to answer for this today, a concern that we had was that when we were seeking to provide that additional support across the government in different ways to a cohort of individuals who weren’t shielding but who we were expecting to isolate and had, you know, particular health needs or disabilities, we recognised that the good work that local authorities were doing right across Wales to try and advertise and signpost the support that was available often was depending on online channels of communication, and so we were concerned about that for the reason that you give.

So over the course of the weeks in which we worked through that workstream, we worked with councils to identify the best practice that many of them were already practising and to spread that. So some of that was around – some of them were even doing radio adverts, some of them were doing leaflet drops to people’s homes, some of them were working with the local voluntary councils to identify people who were disabled or had particular needs who were known to them, and trying to build a much richer means of communicating with individuals. But it was very challenging, and there were – there was good practice happening, the task we’d set ourselves was to try and spread that as widely as we could, and I think over that time we did make significant progress, though we were also conscious that there was a cohort of people who – which we were not able to meet, given the limitations we were all in society working under at the time.

Mr Straw: Thank you very much, no further questions.

Lady Hallett: Thank you, Mr Straw.

I think that completes the questions for Mr Miles.

Mr Poole: My Lady, it does. There’s just one correction to the record, but I’ll let Mr Miles go.

Lady Hallett: Thank you very much indeed for your help, Mr Miles, very grateful.

The Witness: Thank you very much, my Lady.

(The witness withdrew)

Mr Poole: My Lady, yes.

During questions from CTI to Eluned Morgan this morning, I think an incorrect INQ reference was given. The correct document was displayed, but the wrong INQ, so if I can just correct that: INQ000055222 was said; the INQ reference should have been INQ000388561.

Lady Hallett: I of course spotted that, Mr Poole.

10 o’clock tomorrow, please.

(4.12 pm)

(The hearing adjourned until 10 am on Wednesday, 13 March 2024)