Module 2 will look into the core political and administrative governance and decision-making for the UK. It will include the initial response, central government decision making, political and civil service performance, as well as the effectiveness of relationships with governments in the devolved administrations and local and voluntary sectors. Module 2 will also assess decision-making about non-pharmaceutical measures and the factors that contributed to their implementation.
Our clients, Covid-19 Bereaved Families for Justice Cymru have been granted core participant status in both Module 2 and Module 2B, which will specifically look at the decision making in Wales. Module 2B is due to begin in late February 2024.
As part of the opening of the public hearing for Module 2, an opening submission was presented to the hearing’s Chair, The Right Honourable Baroness Heather Hallett, on behalf of the Covid-19 Bereaved Families for Justice Cymru.
The submission was presented by Laura Shepherd of 30 Park Place Chambers, who is part of the counsel team for the UK Covid Inquiry, instructed by our Head of Public Law and Private Litigation, Craig Court.
You can read the full submission, taken from the Inquiry’s transcript, below.
Submissions on behalf of Covid-19 Bereaved Families for Justice Cymru
“I appear on behalf of Covid-19 Bereaved Families for Justice Cymru. I will refer to them as CBFJ Cymru.
The subject matter of this Inquiry continues to be as relevant and pressing today as it was in 2020. My Lady, as you have already alluded to, Covid-19 is still with us.
The bereaved families in Wales are still fighting for truth, justice and accountability. They seek answers to the following questions: why did the UK Government and devolved administrations — what did they know about the risk posed by Covid-19 at each stage of the pandemic? Were the known risks given sufficient consideration? Was there anything that these administrations should have known but did not? And most importantly, for those who I represent, had those governments had sufficient heed to the risks posed by Covid-19, might there have been fewer deaths?
My Lady, in Module 1, CBFJ Cymru focused on whether the UK Government and devolved administrations were adequately prepared for a pandemic. In this module, we will see what happened when those inadequate preparations were put to the test. In Module 2 and the related Module 2B, CBFJ Cymru want to know how the decisions taken by central government impacted on those in Wales.
While most of the decisions shaping the response in Wales were decisions for which the Welsh Government was responsible, there were many decisions taken by the UK Government which impacted on the people in Wales and shaped the response.
Notably, the financial levers remained with the UK Government. So decisions on extra financial support were made at central government level. The Welsh Government sat on COBR and followed the UK Government’s approach at the early stages of the pandemic. They signed up to the coronavirus action plan, which was drawn up and initiated by the UK Government. The Welsh Government shared SAGE as a source of scientific advice, and a four nations approach remained, at least in part, a stated aim of the UK and devolved administrations throughout. Therefore, in order to understand decisions shaping the response in Wales, among the key areas for inquiry in Module 2 are: whether the UK Government and devolved administrations collaborated and worked together; the initial response to the pandemic leading up to the decision to impose the first national lockdown, which was taken on 23 March 2020, a decision which was agreed to by all four nations; how SAGE, the main source of scientific advice during the pandemic for both the UK Government and devolved nations, operated; and how decision-makers engaged with SAGE and the important matter of how scientific and health information, advice and data were shared between the UK Government and devolved nations.
CBFJ Cymru also ask the Inquiry to critically compare the decisions taken by the Welsh Government and the other devolved administrations alongside those taken by the UK Government.
The Welsh Government has long resisted calls to grant people in Wales their own public inquiry. Their position is that a proper understanding of governmental decisions affecting each of the devolved governments can only be achieved by seeing them within the context of the wider UK legal and policy landscape. We therefore invite that critical comparison?
Having introduced CBFJ Cymru’s position, I shall now turn to my substantive remarks.
When the pandemic struck, it was foreseeable that its effects would be unequal and that existing inequalities would be exacerbated. The Inquiry will hear stark evidence of those inequalities, for example that people with disabilities experienced inequality in access to healthcare, that domestic violence was persuasive, that some ethnic groups had greater representation in sectors of work where they were more exposed to risk of infection and, from the report of Professor Clare Bambra and Sir Michael Marmot striking evidence of the relationship between socio-economic inequality and unequal health outcomes.
This evidence provides vital context for examining the impact of the pandemic and what was required of the response to it.
CBFJ Cymru is concerned that there should be thorough examination of the position of older people. Prior to the onset of the pandemic, it was recognised by the Welsh Government that Wales has a higher proportion of older people than the rest of the United Kingdom, and that this cohort are more likely to develop chronic conditions and become frail. In Wales, the population was older than in other nations in the UK, and 71% of those over 65 had at least one long-standing illness. Wales and the UK generally are set to continue this trend towards an ageing population.
The expert evidence of Professor James Nazroo will highlight how older people are at risk of being suggested to ageism and de-prioritisation in access to resources and healthcare, that it was known before the pandemic hit that care homes with vulnerable residents provided a setting conducive to rapid spread of influenza and other respiratory pathogens, that infections may be introduced by staff, visitors or new or transferred residents, and that outbreaks of influenza could have devastating consequences.
With this picture in mind, it is crucially important that the Inquiry will identify whether the needs of older people were overlooked. Was there a subconscious or unconscious tendency to view this cohort as lesser, to view them as dispensable?
CBFJ Cymru say that the response of the UK and Welsh Governments was wholly inadequate to the task. The reason for those failings must be fully examined and understood so that they will not be repeated. Why was a better understanding of the virus not gained earlier by those who had responsibility to take decisions? CBFJ Cymru seek to understand the extent to which the initial response, which was a shared response by all four nations, lacked a coherent strategy. Did a contemplated end point of herd immunity — and by “herd immunity”, my Lady, I mean the second type of immunity referred to by Mr Keith earlier, one which was pursued by Government — was that allowed to shape decisions on the timing and nature of interventions? Was the policy of saving the NHS from becoming overwhelmed applied in a way which was inconsistent with the overall aim of preventing loss of life?
CBFJ Cymru asks that the Inquiry specifically investigates the extent to which decision-makers took into account the prevalence and risk of long Covid.
We ask the Inquiry to examine the evidence which was available at all stages of the pandemic in relation to asymptomatic transmission. Was the approach to scientific uncertainty in line with the precautionary principle? It has been suggested in the written evidence that the difficulty with asymptomatic transmission was that there was a lack of evidence of it or a lack of understanding of it. However, the problem was not so much a lack of evidence or understanding but a failure to factor into decisions something that was uncertain, but which had the potential to have very serious consequences. In the absence or uncertainty of asymptomatic transmission but in the context of there being evidence of a risk, decision-makers should have erred on the side of caution. In light of what was known, the decision in both England and Wales to discharge people from hospital into care homes without testing was indefensible.
Given it was clear from early on that asymptomatic infection and transmission could have devastating consequences, this Inquiry must scrutinise the decisions on prioritisation of testing for those who were asymptomatic. The evidence before the Inquiry shows that decisions on testing demonstrated a lack of urgency. In Wales, the decision to extend testing to all staff and residents in care homes was not taken until 16 May 2020. This appears to have been slower than the other three nations.
We therefore ask the Inquiry to scrutinise the issue of airborne transmission and the state of knowledge concerning routes of transmission at each stage of the pandemic. The possibility of Covid-19 being airborne should have been recognised from an early stage. As early as 14 February 2020, several possible routes of transmission had been recognised by the UK’s Chief Medical Adviser and the Chief Scientific Adviser. These included the potential for transmission via droplets, aerosols, direct physical contact and indirect or fomite based physical transmission. If aerosol transmission was considered at least as likely as other routes of transmission, the question must be asked as to why the predominant messaging in early 2020 centred merely around the need to wash hands and avoid close contact.
The failure to properly acknowledge that Covid-19 is spread by aerosol transmission and to adapt public messaging, guidance and non-pharmaceutical interventions, or NPIs, has important implications for infection prevention and control guidance, including the requirement for healthcare workers to wear FFP3 masks for the routine treatment of Covid-19 patients, as well as wider implications for decisions about what NPIs were implemented.
Given what was known, measures should have been considered at an earlier stage to mitigate against the risk of airborne transmission. For example, there should have been a greater focus on indoor ventilation and air quality monitoring, alongside the recommendation to meet outside where possible. CBFJ Cymru ask the Inquiry to ascertain whether decision-making and public messaging as it unfolded accurately reflected the scientific understanding on the possible routes of transmission of Covid-19.
One of the decisions which led to a change in the NPIs which were implemented was the declassification ofCovid-19 as a high-consequence infectious disease.
CBFJ Cymru asks the Inquiry to scrutinise the rationale for this decision. We say that such scrutiny is warranted, given the extent of transmissibility of Covid-19 and the number of fatalities that there had been worldwide. This includes asking whether the resource implications of classification were taken into account when deciding to declassify Covid-19 as an HCID.
CBFJ Cymru also want to explore how scientific advice was received by decision-makers and factored into policy. There is evidence to suggest that there was a blurring of policy decisions and expert advice, with UK ministers adopting a mantra that they were following scientific advice or following the science, rather than exercising their ministerial judgement.
UK ministers and Welsh ministers should have been informed by the science and not led by it. It has been suggested that decisions were held off until scientific advice was overwhelming, rather than using scientific inputs alongside other analysis. The Inquiry should seek to explore how decision-makers used the scientific advice alongside other factors to inform decision-making.
In a similar vein, there should be examination of whether decision-makers who received advice from SAGE knew how to effectively engage with it and to use it to work out a coherent plan, which was their responsibility.
Not only does the question arise of whether decision-makers knew how to engage with the expert advice, but whether the structure for seeking and receiving advice from SAGE provided sufficient opportunity to ask questions and to explore the issues further with experts.
There should be no confusion about the fact that it fell to ministers to evaluate the advice, to ensure that relevant information was called for, and to make the decisions.
Turning to intergovernmental relations, the way in which the UK Government and the devolved governments interacted with each other in a prolonged time of crisis is a vitally important area of examination. People across the UK are entitled to expect no less from their elected representatives than that they will conduct relations with each other in a way that is conducive to the most effective response possible. The Inquiry must examine whether COBR, which is in the initial stage was the main forum for intergovernmental relations, was an effective means of consultation with devolved nations. Were the devolved nations mere observers on COBR, not having the same information and advice as the UK Government? Was policy analysis shared late? COBR meetings were called on an ad hoc basis by central government. There is evidence from the Welsh Government that requests were made for a more structured, regular and predictable arrangement. While SAGE was available as a source of expert advice for all four nations, there was no reliable protocol for how the devolved administrations could engage more with SAGE.
SAGE provided its advice based on questions from the UK Government alone. Though more direct engagement was requested with SAGE by the devolved administrations, it does not appear that this was achieved. We wish to know why.
The Inquiry must ask whether enough was done to find a reasonable and structured means by which to conduct intergovernmental communication. Did these structures enable orderly co-ordination and discussion concerning divergences in policies? We believe the evidence will show that such structures that there were ad hoc and unequal to the task. A good deal more work is needed in this important area, notwithstanding the recent intergovernmental review.
Internal border control is a particular area of interest and concern to CBFJ Cymru. This was an area where the decisions made by UK Government directly impacted on those living in Wales. One of the measures taken in Wales in the second wave of the pandemic was the “Stay local” message which sought to prevent people living in Wales from leaving their local area. The rule of thumb was said to be 5 miles. In England, there was no such restriction. As a result, people in England appeared largely unaware of the travel restriction and sought to come across the border. Then Prime Minister Boris Johnson ignored calls from the Welsh Government to assist in regulating travel between England and Wales. Travel restrictions from parts of England to Wales remained subject only to guidance as opposed to enforceable restrictions.
The Welsh Government amended regulations to make it clear that people living in areas with a high prevalence of Covid-19 in England, Scotland and Northern Ireland would not be able to travel to parts of Wales, but the UK Government did not legislate to assist in restricting cross-border travel.
CBFJ Cymru ask the Inquiry to scrutinise the decision-making and communication on this issue, and to ascertain whether there was evidence to suggest any outbreaks in Wales were directly caused by cross-border travel from England into Wales. There were many areas of divergence in NPIs between the Welsh Government and the UK Government. Given the shared border, there are some towns which span the border. This had the potential to cause confusion and disruption for those living in Wales.
Some of the changes were small, such as the number of people from different households who could meet. Given the need for consistent and clear communication with the public, there should have been a good reason for any areas of divergence in policy between the territories of the four nations.
The Inquiry must examine whether divergences between nations and their NPIs were based on sound reasons. The Inquiry should examine whether, bearing in mind the risk for confusion, the leaders of all four nations did all they could have done to deliver a clear message to the public about measures being applicable to one part of the UK but not another.
The evidence will show that there were repeated failures at UK Government level to make it clear where measures being announced applied to England only. This caused unnecessary confusion for people living in other parts of the UK. A report commissioned by this Inquiry sets out how UK Covid press briefings repeatedly failed to clarify the territorial scope of the rules, namely that many of the new rules announced were England specific. An analysis of the texts of prepared speeches throughout 2020 shows that those speaking on behalf of the UK Government did an incomplete job of outlining the territorial scope of their data, information and guidance.
The Inquiry must seek an explanation from the UK Government as to why there were such repeated and avoidable failures in its public messaging, which was ultimately to the detriment of the public.
To conclude, my Lady, it has been acknowledged by some witnesses that errors were made in the response to the pandemic. We say that acknowledgement does not gofar enough, and that the errors which have been acknowledged are the tip of the iceberg in terms of what the evidence will uncover.
These errors caused unnecessary pain and suffering. This Inquiry must therefore reach findings which will lead to decision-makers making better decisions and the institutions of the government working more coherently and collaboratively with devolved administrations of the UK. Changes must be made speedily, in light of those findings so that when the next pandemic strikes, as it inevitably will, people across the UK will be better protected from harm and loss of life.
Diolch yn fawr, thank you very much.”
You can follow the hearings live on the Inquiry’s YouTube channel, here.
How can I become involved?
Anyone who has lost a loved one to Covid-19 in Wales is able to join the Group and benefit from legal representation by Harding Evans. Such legal representation will be at no cost to you.
Click here for further information on legal representation for Covid-19.
