6. Submissions on Behalf of the Department of Health Northern Ireland by Ms Murnaghan KC

Ms Murnaghan: My Lady, these Inquiry proceedings over the past 11 days, preceding weeks, have brought a forensic focus to how the Northern Ireland Executive responded to the pandemic. This has been a necessary but also a difficult and illuminating process. It may, in these circumstances, be tempting to recall the words of the late Queen, albeit in a somewhat different context, in fact at an Irish state banquet in 2011, when she said that, with the benefit of hindsight, there are things that we “wish had been done differently or [indeed] not at all”.

In an ideal world, my Lady, Northern Ireland’s health and social care system would have been less fragile at the beginning of 2020, its government and political system would have been more stable, ministers would have had time to bed into their respective departments, and its government wide civil contingency system would have been in a better place.

Undoubtedly, as Covid-19 reached our shores, the global challenges caused by the paucity of testing capacity was regrettable, but not unforeseeable, given that the genome was only identified on 10 January.

Greater testing capacity at an earlier stage would have made significant differences, in that it would have allowed for more informed policy choices to have been made and, indeed, as the pandemic progressed, the continuation of Executive unity would have also been a further significant benefit.

However, my Lady, it is trite to say that we do not live in an ideal world and Northern Ireland’s preparation for and response to Covid-19 was inevitably far from perfect. Criticisms have been levied against actions and inactions taken by the Department of Health, and we have no doubt that where such criticisms are merited the department will seek to learn lessons from those failings.

Nevertheless, and without being in any way defensive, such criticisms must be viewed in the context of this being a situation where there were no easy answers and only incomplete evidence. Indeed, in the vast majority of occasions, the department was faced with investigating and advising on the least harmful options.

We must also keep in view the reality that these issues were being addressed by a relatively small group of people who were working at an unprecedented pace, over long hours, for many months, each of whom was making significant personal sacrifices for the good of their community.

My Lady, as Anthony Hidden QC commented in the Clapham Junction rail incident report, there is almost no human action or decision that cannot be made to look more flawed and less sensible in the misleading light of hindsight.

A full exploration and understanding of the factual and evidential position which pertained at the time is of course necessary to ensure that we are better prepared from any future pandemic. However, to identify the true learning, we must also be cautious to avoid the temptation of proceeding on the basis of preconceived theories or opinions, assuming positions of simplicity and certainty when in reality there was only complexity and uncertainty.

The Department of Health does acknowledge that other parts of government may have been frustrated at times by a perception that the department was not always promptly sharing evidence with it. However, we can say there was no intention to delay the delivery of updated advices; rather, the timely provision of information was hampered by limitations on the acquisition of reliable data, ongoing uncertainties over the virus, and an ever-changing situation.

We would also say that in leading the health response, the department acted in a prompt and timely manner when it stood up the silver tactical command structures on 22 January 2020, when it activated the Department of Health emergency response plan, and it stood up its gold command five days later on 27 January 2020.

Questions have, of course, been asked in these proceedings about the extent to which the department should have sounded the alarm about the impending threat of the virus. The department contends that it provided regular updates to the Executive, to the Assembly, to the Civil Service and the wider public in respect of the unfolding situation.

To take just one of those limbs, in the seven statements made by Minister Swann to the Assembly, these powerfully demonstrate how open the department was with the information it had at the time. From the statements that Minister Swann made to the Assembly from 24 January to 19 March, it is clear, we say, that a robust message was delivered. This message clearly articulated the evolving situation. Right up to the point when the WHO declared the global pandemic on 11 March 2020, the department’s focus was on providing assurance to the Assembly and indeed the wider society that plans were in place to deal with the virus.

Moreover, as the information about the pandemic increased, the statements reflected the change in that evolving situation. Some examples, we say, confirm the fact that the Assembly was updated throughout. These include the minister’s statement on 24 January 2020, which was before the first case was identified in the UK, and at that stage the evidence was that the risk to the UK public remained low. However, the minister said:

“… there can be no room for complacency. There may well be cases in the UK at some stage. I have been assured that we are well prepared for these types of incidents. I am confident that my colleagues in the Executive and across the Assembly will understand that while it is important that we remain vigilant, we need to take a proportionate response to what is an emerging issue.”

The minister made a second statement to the Assembly some five days later, on 29 January, which was still before the first case was identified, and he said:

“While the current risk is assessed as low for the UK, members will appreciate this is a rapidly evolving situation. Hence this risk assessment is under constant review. Therefore there can be no room for complacency and my priority as Minister is still to ensure effective measures are in place [in] Northern Ireland. To this end I have … participated in a COBR meeting this evening which comprised UK Government Ministers and Ministers from the Devolved Administrations. We have given our firm commitment to a coordinated approach to this extremely important issue.”

The minister’s third statement to the Assembly, made on 3 February, was after the first two cases were identified in the UK, and he had already briefed the Executive that morning, and to the Assembly he said:

“I want to [assure] members that while the risk has been raised from low to moderate there is no cause for alarm [but this] does not mean we think the risk to individuals in the UK has changed … rather … we should plan for all eventualities.”

He continued to confirm that he had spoken to the First and deputy First Ministers and he said:

“… [I] have been assured that all the necessary resources of Government will be available to help keep our people safe. I have updated my Executive colleagues at our meeting this morning and have their full support and commitment.”

In a fourth statement, on 26 February, the minister said:

“It is important … [to] remain calm and focused … we should continue to plan and be ready for all eventualities.”

He made a fifth statement on 28 February, the day after the first case in Northern Ireland, and he made that by way of urgent oral statement, and he advised that it was not unexpected that we would have a case in Northern Ireland at that point.

That was swiftly followed by a sixth statement at which stage Northern Ireland still only had one positive case, and there was one case that had been identified two days earlier in the Republic of Ireland, and during that he reiterated:

“I remain in close contact with other UK Health Ministers and I will continue to take part in weekly COBR ministerial meetings to ensure our joined up approach in tackling this disease … I can also advise that I along with the First and deputy First Ministers participated in a COBR Ministerial meeting this morning which was chaired by the Prime Minister …”

He continued:

“Across the [Northern Ireland Civil Service] planning has been stepped up to ensure a co-ordinated response from all sectors of Government. I am aware TEO is leading the work on assessing essential services and key sectors’ resilience and that they convened a cross-departmental meeting on 20 February where information on … all possible eventualities was shared and all Departments were asked to review business continuity plans. A tabletop exercise is planned in coming days where our planning and preparation across government will be discussed.”

He continued to say:

“Complacency is our enemy – but so too are panic and hysteria.

As we [have] said, we will continue to [plan] for all eventualities.”

My Lady, we say it is notable that these statements pre-dated the WHO declaring the virus as a global pandemic, which happened on 11 March. One recalls that this was a time when there was considerable uncertainty, but there is evidence of considerable preparation and planning under way.

Finally, the minister made a seventh statement on 19 March, after – at which stage we had had our first death from coronavirus in Northern Ireland. That statement provided a considerable amount of detail of the actions that had been taken and what was planned to come.

Reflecting on the consistent and increasingly urgent messaging from the minister in these brief excerpts, it is contended that the concerns that insufficient actions were taken to sound the alarm are without merit.

These communications should also be viewed in the context wherein the permanent secretary, Mr Richard Pengelly, for the department had specifically briefed his permanent secretary colleagues on 7 and 21 February 2020, in the course of which he emphasised the need for his colleagues to pay urgent consideration to sector resilience in the face of the growing threat.

Moreover, this Inquiry has heard the clear view of its expert advisers, Professors O’Connor and Gray, that too much weight was placed on one department, and that department was the Department of Health.

My Lady, there are several themes which the department would seek to expand on in its written closing statement which are, regrettably, too detailed to be extensively rehearsed in these closing remarks. These topics will include evidence to demonstrate the manner in which the department fully understood and appreciated the gravity of the impending pandemic. But it is submitted that the Department of Health could only ever have led on the health response to the pandemic and could never have taken charge of a wider co-ordinated cross-governmental response. In part, this is due to the fact that the department had no sight of or expertise in other non-health sectors, and the factors involved.

In its written closing statement, the department will seek to address its understanding of its role as the lead government department, the activation of NICCMA, and its understanding of the appropriate scope and reach of its responsibilities.

Finally, my Lady, we say, looking at the overall picture, it is important also to acknowledge what was achieved. The threat that was posed by Covid-19 was unparalleled, and so too was the scale of the response that was activated. Restrictions that previously would have been unthinkable in peacetime were introduced and, more importantly, were assiduously adhered to by the vast majority of the population.

Without minimising the dreadful consequences for many in our society, it is nonetheless relevant to note that Northern Ireland, in its response to the pandemic, fared better when compared with other nations in the UK.

Moreover, the SAGE autumn 2020 four nations comparison exercise, which is found at INQ000422240, emphasised that the interventions in Northern Ireland in the second wave proved to be the most effective of those imposed by the other devolved administrations and central government.

The Department of Health maintains that the advices that it gave in respect of the key decisions on restrictions, whether to introduce NPIs, or lockdowns in March 2020, and again later that year, were the correct ones.

My Lady, throughout these oral hearings you have heard a variety of themes which have suggested that alternative responses could or should have been taken, whether in the form of NPIs, or the timings of school closures, or lockdowns. The restrictions that were imposed undoubtedly exacted a heavy price on our society. However, in the absence of a widespread vaccine at that stage, these were the best or possibly better put as the least worst options to take.

It is incontrovertible that these difficult decisions and restrictions which were imposed saved many lives, and while our health service and our health and social care teams suffered from the severe impacts of Covid, from which it will take many years to recover, ultimately the health service did not collapse, and for that, my Lady, we can be thankful.

We can also be very thankful for those who worked tirelessly to the very best of their ability to protect our citizens. We acknowledge the many sacrifices of the population of Northern Ireland to protect those who were and remain the most vulnerable.

Few of us emerged from the pandemic unscarred. Those scars should inspire us to ensure that the legacy of this pandemic must be that we are better prepared for the next one.

Thank you.

Lady Hallett: Thank you very much indeed, Ms Murnaghan.

For those who question the need for and cost of this Inquiry, I suggest they listen to those closing submissions.

Ms Dobbin. Closing remarks by LEAD COUNSEL TO THE INQUIRY for MODULE 2C

Ms Dobbin: My Lady, may I address you on two things, please?

As you know, whilst these hearings have ended, your work continues apace, and of course pursuant to that, with your permission, the Inquiry has adduced in evidence and published on its website through the course of these hearings a number of documents. This comprises the documents that have been brought up on screen and during the hearings, and indeed the statements of witnesses who have given oral evidence.

But we expect, as with previous modules, that you will wish to consider a wider body of material for the purposes of writing your report, and to that end the Module 2C team have provisionally identified a list of additional documents which we will also seek your permission to adduce.

This will include, amongst other items, approximately 60 statements of witnesses who have not given oral evidence but whose statements you may wish to rely upon for the purposes of compiling your report.

So we propose to circulate a list of those documents to core participants so that they have the opportunity to review the documents which we have suggested, and either object to those or to, indeed, propose additional documents which they think you ought to take into account for the purposes of your report.

Thereafter, with your permission, the Inquiry will adduce in evidence and publish those documents, again, on its website.

The second matter, my Lady, as you might recollect, at the very outset of the Inquiry, the issue as to why the Executive Office had not disclosed the Executive Committee minute notes of 2 July was set out to you, and you heard that the TEO would produce a report which set out the findings of an investigation into that.

I can confirm that that report was received by the Inquiry yesterday evening. You have not, of course, had a chance to consider it, and obviously that will be the first thing that you will do, but I think it’s appropriate that I obviously set out that that has been received and will be considered.

Lady Hallett: Thank you, Ms Dobbin. Obviously, I will need to take time to reflect upon its contents and see what more, if anything, I intend to do.