9. Submissions on Behalf of the Migrant Primary Care Access Group by Ms Naik KC

Ms Naik: Thank you very much. I hope you can hear me now.

I appear with Ms Sardar of counsel instructed by Ms Ellen Fotheringham of the Public Interest Law Centre today, and I represent, as my Lady knows, the Migrant Primary Care Access Group, which consists of Doctors of the World, the Joint Council for the Welfare of Immigrants, Kanlungan and Medact.

My Lady, you have our two sets of written submissions, the first, in relation – which was on 10 April, which addressed the submissions directly to the Inquiry on the issue of privilege, and the second, in relation to this hearing, on 14 May.

And we’re very grateful to the Counsel to the Inquiry and the note of 2 May and also for inviting the wider engagement and submissions from the other core participants insofar as they have on the issue of parliamentary privilege. And I think the issue has moved on somewhat since we first raised the question but I just wanted to outline in very brief terms what the issues are and how we got where we are now.

So the first issue on privilege is as to how to deal with questions of privilege that arise in the context of the Inquiry. Does the issue of privilege arise here? Should there be a ruling? And importantly – and I think this is where we are at now – the consistency of the application of those principles and the proposed workaround by the Inquiry across the modules both past, present and future. And one issue that that leads us to is to whether there should be or is there a need for a protocol from the Inquiry as to how that should be applied. And that’s not something we previously foreshadowed in our written submissions, but it seems to be a matter that deals with how the matters have emerged so far.

We start, as Counsel to the Inquiry notes in his written submissions for this hearing at paragraph 33, that the issue of parliamentary privilege is a complex and difficult issue, and we recognise that. There’s also now, as my Lady may be aware, a House of Lords committee on statutory Inquiries which was appointed to examine the efficacy of the law and the practice in relation to statutory inquiries which opened at the end of January this year. And as, again, just a further observation in opening, that Mr Keith notes in his written submissions that if we were to proceed down the path of a ruling, that the Speaker’s counsel might be required to participate. And again their position, as recorded in, for example, the Heathrow Hub case, is that it’s important for the court and Parliament to agree as far as possible as to what the ambit of the privilege rule is.

So, in summary, our position as it was set out on 10 April arose in response to the requests from the Inquiry to amend our draft Rule 9 witness statement and indeed the engagement in correspondence that we had with the Inquiry, at some length, before we got to the position that we did. And the first question is whether there should be a ruling on whether privilege applies or whether, if privilege in principle applies, there are any exceptions to that usual rule, which would then require consideration of the case law and some of the familiar carve-outs that already exist in the case law.

In those submissions, we then invited the Chair to either permit us to exhibit or refer to our select committee evidence and to put us on a similar footing to some of the CPs in Modules 1 and 2, with reference to the examples, I think ten examples we gave in our written submissions at paragraph 23, of where we said a difference of approach had been applied, and we said there we wanted to refer to, cite and exhibit our evidence, which was largely for Doctors of the World, JCWI and so on, in the form of submissions and briefings to the select committee, and also in relation to the recommendations that they had made in response, that the committee had made in response to the reports that were made to them.

Now, in light of the development of the position, as we see it, and the engagement of the Inquiry and Counsel to the Inquiry’s position as to the workaround, we now recognise, and I think it’s clear from both sides, that we can exhibit our evidence that was made to the select committees in a new statement, and that this then really only leaves the question of what should happen to the evidence as to the recommendations that were made by the select committee reports in response to our submissions.

That’s important for my clients, or for our clients, because they seek to demonstrate that the government knew the issues around structural inequality and barriers to vaccine take-up for migrant communities, in particular because of the already in place hostile environment which had existed for some years before the pandemic started.

So, for those reasons, we propose the further practical workaround – again, Counsel to the Inquiry invited the Migrant Primary Care Access Group to propose an alternative workaround if we weren’t satisfied with the one that we had been offered – or had been clarified, rather, perhaps late in the day, and we suggested the de bene esse approach. And we referred, you don’t need to go to those now, but in – how that approach had been used, for example, in the Administrative Court, in the submissions we’ve referred to in paragraphs 12 and 13 as to admitting in the evidence and then allowing the responses to come from government, and then to allow the –

Lady Hallett: I’m sorry to interrupt.

Ms Naik: Yes.

Lady Hallett: I’m really sorry, I try not to do it unless I have to, but one of the first pieces of advice I was given when appointed a judge is: don’t rule on an issue unless you have to. And at the moment I can’t see any necessity to rule on the issue. It may be it will come, I don’t know, but at the moment you have the agreement of Counsel to the Inquiry that you can put in the evidence you wish. When it comes to the recommendations of the select committee, at the moment I can’t see a problem, but if there were a problem, surely that is something I’d come to when I’d started hearing the evidence. Isn’t this premature?

Ms Naik: Well, my Lady, I’m grateful for that indication, and of course Counsel to the Inquiry identifies that we shouldn’t rule unless we have to. There has been an – in the history of the correspondence between my clients and the Inquiry, there has been a reasonable amount of confusion and there has been what we’ve said is an inconsistency of application – it may be an approach, but there has been an inconsistency of application for the reasons we set out in our original submissions.

The question of the recommendations is key to the way my clients put their case or put their evidence to the Inquiry, and if the Inquiry isn’t minded to rule on it now, we certainly want to use this process to flag the issue, and if that’s all that’s required at this point in time, then we would be satisfied with that. But we –

Lady Hallett: Consider it flagged.

Ms Naik: Thank you very much.

We just note that in the correspondence it was suggested that this isn’t a straightforward matter and we did have a lot of back and forth with the Inquiry team in relation to how it should be developed, and we do posit at least the idea of a protocol to ensure consistency across the modules, and we say that because I think Counsel to the Inquiry suggests that our concerns are overstated, but we do – well, we flagged them, and I use the language advisedly. I do also want to emphasise that it was the Migrant Primary Care Access Group’s intention – the primary objective of raising this issue and following through with it was to foster clarity, certainty and fairness across the Inquiry, and importantly, from my clients’ position, because their joint statement of course identifies barriers to inequalities that prevented access to the Covid vaccine and therapeutics for a significant proportion of the migrant community, and in particular the hostile environment. And so the – where this matter was most importantly addressed was in the select committee, that was the key forum for those non-state actors to try to impact government decision-making about the pandemic response at the time. So we want to emphasise to the Inquiry the – to examine very carefully the extent to which the government engaged with and considers the terms that – considered the evidence that was before them.

So I don’t necessarily need now to go to the detail of what the various workarounds were that were proposed, but we say that we would – we wanted in the proposal that we suggested to have the opportunity to finalise our Rule 9 before – after, sorry, after the Home Office had made their response.

Counsel to the Inquiry says that’s an unworkable position, but that is the position that logically follows from the de bene esse approach. We don’t suggest that to be applied to all core participants. It’s only those who seek to rely on such material that is otherwise going to be difficult to elicit/excluded on the grounds of privilege.

So we don’t try to impose an unreasonable or unworkable burden on the Inquiry, we just identify it for this CP and any others who are similarly situated who wish to rely on such material. So we leave that point there, if I can.

The second point is in relation to the expert evidence, and again we’ve had some engagement with the Inquiry as to the nature of what that will look like and the shape of it.

Just responding to Mr Keith’s point this morning, as a CP, we will endeavour to update our Rule 9, of course, as to the history and the evolution of the hostile environment, but we still maintain our request for an expert. First of all on the basis that there’s a distinction to be made between an organisational expert and an academic expert, for obvious reasons. And secondly because, I think in line with the submissions made by Ms Munroe KC and Ms Banton earlier before lunch, there are differences in relation to the impact of the structural racism as being a barrier to vaccine take-up, and in particular – and that there’s a specific subset to migrants who are – particularly those who are subject to hostile environment, and we observe and support Ms Munroe in her analysis or description that vaccine hesitancy is insufficient to address state-imposed structural barriers and discrimination, and in particular and further our case is about access to the vaccine in the context of data sharing with the Home Office and the subjective fears that certain migrants or indeed many migrants would have in that context.

So whilst we recognise that these experts are welcome, we need to ensure that the expert reports cover the particular situation of migrants in the UK who faced unique barriers and entrenched inequalities in accessing vaccines and therapeutics.

So we propose two further experts which we would like the Inquiry to keep under review if they’re not going to consider that question today or now, but as we indicated that once we’ve updated our Rule 9 we do invite the Inquiry to keep that matter under review.

The third issue is in relation to the timing. And again we don’t need to say much more about it, other than we propose or support the observations made by the other CPs in relation to the timetable and the timescale of the 13 days with 10 or 11 allocated to witness evidence.

We understood, I just wanted to make sure I had understood correctly, my Lady, that when we were originally allocated – in July we had 20 days, I had understood, and that’s gone down to 13 days, and as far as we’re aware, or I’m aware, there is no reasons that have been given for a truncated listing, aside from those that Mr Keith advanced today more generally about the timetable for the Inquiry as a whole.

So … but given that the issues as identified previously were for 20 days, we just pray in aid that we haven’t seen any justification in relation to the ambit of this module to justify a reduction in time.

So those are all the things I wish to say. Thank you very much.

Lady Hallett: Thank you.

Right, Mr Jacobs.