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

Mr Kinnier: My Lady, if you lost a loved one to Covid-19, if you continue to suffer from impact of the virus, or if your livelihood was or continues to be affected by that virus, you will rightly want to know whether the Welsh Government could have done more sooner or more effectively or differently so that your loved one would not have died or the long-term adverse effects of the virus would have been stopped or your job and livelihood preserved.

Welsh ministers recognise that the difficult decisions they made in response to the pandemic caused very significant disruption to and change in people’s lives and livelihoods. Communities and local services suffered, and indeed continue to suffer. On more than one occasion the First Minister has said that if he knew in early 2020 what he knows now in 2024, of course the Welsh Government would have acted differently. For example, Mr Drakeford explained that local lockdowns did not work as he had hoped, but faced with rising incidence of the virus in certain areas, a concern to open up society as swiftly as caution allowed, and in an effort to strike a balance between the competing harms, local lockdowns were a worthwhile measure worth taking.

In evidence, all witnesses from the Welsh Government set out how they would have acted differently had they had the benefit of the knowledge which we now have about the virus, including, for example, its long term after-effects. But the decisions made by the Welsh Government are to be judged by what was known at the time about the nature of the virus, which was very little indeed in early 2020, and in circumstances where swift action and hard decisions were necessary to protect the people of Wales.

In opening, Counsel to the Inquiry said that there may have been any number of right decisions in response to the pandemic. Ultimately the question is whether, taking into account the many relevant and often conflicting factors, but especially rapidly evolving knowledge of the virus, the Welsh Government’s decisions were reasonable. Self-evidently, different decisions could have been made, all of which were nonetheless reasonable responses to the unprecedented challenge of Covid-19 to civil society.

To have taken one reasonable course when an alternative reasonable option was also available does not make the course taken wrong or in some way flawed. The answers to the questions posed rightly by Counsel to the Inquiry in opening are complex and we will set out our answers in detail in our written statement.

To do justice to that complexity and in order to make effective recommendations in due course, the Inquiry will consider the fine detail of both the written and the oral evidence. For each decision, there was no single right answer. In particular, no decision was free from consequence. None could have guaranteed that no one would have lost their life to the virus.

Some suggested alternative actions were, on analysis, unrealistic. To take one example, there was no real prospect that the Welsh Government could have unilaterally locked down Wales before the UK Government itself acted on 23 March 2020. It was far from certain that the population would have accepted the severe restrictions of a lockdown before one had been imposed elsewhere in the UK and at a time when Wales was yet to reported any confirmed cases of the virus.

To have imposed the most draconian restrictions on individual liberty in peacetime, in one of the parts of the UK least affected by the disease, when such actions had not been taken in those parts most affected by the virus, for example the southeast and London in particular, was, in the First Minister’s words, “entirely unfeasible”. There was no possibility of Wales sealing itself off from the rest of the UK and the wider world and waiting for a vaccine.

On some occasions it was suggested to Welsh Government witnesses that they should have learned and applied the lessons of the first lockdown to later lockdowns. The evidence shows the Welsh Government learning from its previous decisions and taking steps to inform itself and, indeed, change.

In just one example, Eluned Morgan described how, learning from the first wave of the pandemic, restrictions were placed on staff moving between care homes when facing the emergence of the Omicron variant.

Lessons learned exercises took place during the period under consideration by this module which enabled the Welsh Government to reflect on its response, including what worked well and where change was necessary.

But the criticism that lessons from the first lockdown specifically ought to have been applied to the later lockdown is misplaced, for reasons which were carefully explained by the Inquiry’s expert, Professor Wincott.

In the first lockdown in March 2020, the governments of the United Kingdom were seeking a wholesale reordering of society in order to combat the virus. By the time of the autumn firebreak in October 2020 and the Christmas lockdown, the public policy challenge was seeking to strike the sensitive and difficult balance between the safe re-opening of society whilst reducing at the same time the incidence of the virus.

In short, a simplistic comparison between the policy responses in March 2020, October 2020 and late 2020 and early 2021 is not comparing like with like.

On other occasions it was suggested that in some way the evidence was more definitive or clearer than in fact it was. There was never any sense, once the initial lockdown was over, that scientific and expert opinion was of one mind. Within the Welsh Government, ministers, officials, clinicians and scientists had to grapple with evidence that was often volatile, sometimes contradictory and frequently incomplete. But decisions had to be made, and they were made in good faith and with the best understanding possible at that time, whilst balancing the very real harms that the Inquiry has examined over the last three weeks.

Some criticisms have reflected the diverse and in some respects conflicting range of views held among the core participants before you. The timing and length of the firebreak in October 2020 is one such example.

The BFJ Cymru group questioned the Welsh Government’s justification for the timing, length of the firebreak, and questioned the significance of the decision made by the UK Government not to bring forward the start of the job support scheme to coincide with the start of the firebreak in Wales.

By contrast, the Children’s Commissioner’s concern is the consequences of the timing and length of the firebreak on children’s education, and in particular years 9 and above who were asked to stay at home during the firebreak, and how the reasons for that decision were explained to the public.

My Lady, faced with the evidence of increasing incidence in September 2020, and in light of SAGE and TAC advice about the benefits of a firebreak or circuit-breaker, Welsh ministers decided to impose a 17-day firebreak which was the shortest possible length consistent with achieving a sharp and deep effect on the incidence of the virus. That reflected the consistent effort to strike a reasonable balance between protecting lives, protecting livelihoods, and re-opening society safely.

The Welsh Government sought to achieve that balance by keeping children in childcare, primary and special schools open, and secondary schools, which were only open to years 7 and 8 after half term and also to those taking public exams. The balance was struck in that way because other secondary children in years 9 upwards were thought to be more mature and more able to engage with self-directed learning for one week.

My Lady, that is just one example of the many balancing decisions that had to be made.

Consideration of the needs of the vulnerable and disadvantaged was fundamental to the Welsh Government’s decision-making throughout. My Lady has asked witnesses what action was taken to protect those needs, and the detail of the responses can be seen in the 86 witness statements that the Welsh Government has provided to this Inquiry for the purposes of this module. But to give some non-exhaustive examples:

First, the Welsh Government worked with local authorities and others to identify the most vulnerable children and ensure that they could still attend school.

It ensured that children who were entitled to free school meals would receive meals when schools were closed, including through the summer holidays.

Children with additional learning needs had their rights protected in Wales throughout the pandemic.

A digital offer to pupils in Wales was implemented quickly, and steps were taken to tackle digital exclusion with laptops and internet dongles.

These actions were underpinned by the need to support the safety of students and teachers alike, the physical and mental wellbeing of students and staff, the ability of pupils to keep on learning and, crucially, to return to their school and on to the next stages in their education.

Secondly, in April 2020 the First Minister established the Black, Asian and Minority Ethnic Covid-19 Advisory Group to examine the disproportionate impact of the virus on minority ethnic people and communities, and implemented the recommendations of its subgroups.

Thirdly, Jane Hutt, the present Minister for Social Justice, led the Welsh Government’s Disability Equality Forum and, after Wales was locked down, adapted it to provide a means of communication and consultation with disabled people and their representatives. The recommendations in Professor Foster’s report, commissioned by Jane Hutt, I think in June 2020, are being implemented.

Fourthly, as has been explained, data modelling in Wales took account of the higher proportion of older people in the population which informed decision-making. The Older People’s Commissioner was a member of the Shadow Social Partnership Council, and in that forum and indeed elsewhere she was a forthright and respected advocate of the interests of older people.

Fifthly, the Shadow Social Partnership Council was an invaluable means of bringing together the Welsh Local Government Association, the CBI, the Federation of Small Businesses, TUC Cymru, third sector representatives, the Future Generations, Welsh Language, Older People’s and Children’s Commissioners.

What other criticisms have been made of the Welsh Government’s actions elsewhere? There is a degree of unanimity that the council served its purpose well. That forum allowed for open, constructive and often robustly challenging discussions about how best to protect the interests of the vulnerable and all other sections of society. Crucially, those discussions took place before decisions were made.

My Lady, the Inquiry has received evidence regarding the closeness of the working relationships between individuals within the Welsh Government and public bodies and their representatives, particularly in the NHS in Wales. Those strong and close working relationships, in part enabled by the geographical size of Wales, meant that Welsh ministers heard directly and on a daily basis how the pandemic was impacting on different communities and within different sectors at different times. Those accounts were crucial in informing the key decisions that were made as part of the Welsh Government’s response to the virus.

This extended to close cross-party co-operation and information sharing, as the Inquiry has also heard, in the form of the Covid core group that was established by the First Minister in the early stages of the pandemic. The group included, as well as the key ministers with responsibility for developing the government’s response, representatives of stakeholder bodies, and that was in addition to the wide range of views sought through the Social Partnership Council.

My Lady, one point which is important is that throughout the course of the pandemic, the Welsh Government was subject to robust parliamentary scrutiny in the Senedd. That was effective, and as my Lady is aware, towards the winter of 2020 there was no easy consensus in the Senedd on how best to respond to the continuing pandemic.

The close working relationships are a defining feature of the way in which decisions are made by the Welsh Government and they enabled ministers to act on relevant, up-to-date information received from the bodies that were best placed to provide it.

That is a particular and important strength of the structures that exist in Wales which the Welsh Government would respectfully urge the Inquiry to keep in the forefront of its mind when considering decision-making systems and structures more generally. These are benefits that would inevitably be diluted, if not lost altogether, were a more centralised emergency decision-making structure to be introduced.

My Lady, in closing, the final word from the Welsh Government must be to remember the very many families who lost loved ones, and to recognise those who have suffered and continue to suffer the effects of the pandemic in every part of Wales.

My Lady, thank you.

Lady Hallett: Thank you very much, Mr Kinnier.

Mr Poole. Closing remarks by LEAD COUNSEL TO THE INQUIRY for MODULE 2B

Mr Poole: My Lady, only a couple of short points from me.

With your permission, the Inquiry has already adduced in evidence and also published a number of documents through the course of these hearings. This comprises pages of documents brought up on the screen during the hearings, statements of witnesses who have given oral evidence. As with previous modules, we expect that you will inevitably wish to have in evidence a wider body of material than that to – for the purposes of writing your report.

The Module 2B team has therefore already provisionally identified a list of additional documents which we seek your permission to adduce. These include around 120 statements of witnesses who have not given oral evidence but whose statements you may wish to rely on when compiling your report, as well as full versions of documents which have been part adduced during the hearing.

We have also written to core participants to give them the opportunity to propose additional documents for publication, and we ask core participants to provide such requests to the legal team, including those mentioned in oral submissions today, and then, in the normal way, the extent to which those will be published will obviously be a matter for your Ladyship and you will, of course, need to have regard to any sensitivities in those documents and their relevance.

If your Ladyship will indulge me for one further moment, I would like to pay tribute to all those who have made these hearings in Cardiff possible and have either been here with us or behind the scenes.

All the members of the Inquiry team have worked tirelessly in playing their part in the conduct of these vitally importance hearings for the people of Wales. They all have my sincere thanks for their hard work and dedication. In particular, may I express publicly my thanks to the Module 2B solicitor and paralegal team, brilliantly led by Charlotte Whitaker and, last but certainly not least, my amazing counsel team, Laura Paisley, Louise Cowen, Helena Spector and Lauren Hitchman, and also Kate Wilson and Abi Johnson who were unfortunately not able to join us here in Cardiff.