The UK Covid-19 Inquiry and the Welsh Government

I lead the Covid-19 Bereaved Families for Justice Cymru group, and we are core participants in the UK Covid-19 Inquiry. This week saw the third preliminary hearing of Module 1 in this Inquiry: ‘UK pandemic preparedness and resilience’. The first evidential hearing for Module 1 commences in just seven weeks, yet we still have not received a single witness statement in relation to Wales. There has also been very limited disclosure.

Wales does not have its own public Covid-19 inquiry. Mark Drakeford, First Minister for Wales, has consistently refused to establish a Welsh inquiry on the grounds that the actions of the Welsh Government must be and will be scrutinised in detail alongside the actions of the UK government and other devolved nations in this UK Inquiry. Module 1 is therefore the only opportunity for the bereaved people of Wales to ask questions and seek answers and accountability on issues of pandemic preparedness in Wales.

Provenance and significance

In our group’s oral submission to the Covid-19 Inquiry hearing chaired on 25 April by Baroness Hallett, delivered on our behalf by barrister Kirsten Heaven, we remarked that “not a single witness statement has been disclosed from a Welsh-related witness of fact or from the Welsh Government. In terms of documents, we have received 26 from the Welsh Government Association, 12 from the Welsh Council for Voluntary Action, 134 from Public Health Wales, and 94 from the Welsh Government. The [latter] were disclosed on 21 April at 5:32pm.”

“Some of these Welsh Government documents are clearly of real significance to some aspects of the historical attempts to prepare for a pandemic going back nearly 20 years in Wales. However, they are piecemeal, and their significance is unclear as there is no witness statement explaining the context … Many of the names of the key players are not contained within these historical documents and we have not seen the corresponding Rule 9 requests that may have explained the provenance and significance of the various documents. This of course makes it difficult for the Cymru group to identify relevant witnesses.”

Kirsten Heaven asked whether the delay in disclosure had been caused by the Welsh Government. The Covid Inquiry Legal team confirmed that it failed to disclose all relevant documents to the Inquiry in the first draft of its witness statement, and that the Inquiry had to go back to the Welsh Government a second time to request full disclosure. This is very concerning for bereaved Welsh families, as delayed disclosure limits their time to review and question the statements and evidence submitted on behalf of the Welsh Government. Kirsten Heaven also highlighted the lack of data on Wales in the expert witness statements received to date. The consequences of this piecemeal and limited disclosure for Wales are stark.

On 10 September 2021, Mark Drakeford wrote to the UK Cabinet stipulating his requirements for Wales in the UK Covid Inquiry: “For the UK inquiry to have credibility in Wales, where there are currently many calls for a separate Welsh inquiry, it is important it proceeds in a way which allows it to focus discretely on Wales as part of its remit. This will require visibility – the inquiry team should come to Wales to take evidence, it should have Welsh-specific expertise available to it, and it will be important to produce Welsh chapter/s as part of the report so that citizens here can reflect transparently on the Wales narrative and conclusions.”

Data and devolution in the Covid-19 Inquiry

Despite this assurance from the First Minister, the Welsh Government failed to request Welsh expertise at the hearing. The Cymru group therefore had to ask the Inquiry to instruct a number of Welsh specific experts, including one on pandemic preparedness.

Our group made written submissions on a number of expert reports for Module 1 and viewed the most recently disclosed reports. What is clear from these reports is that devolved administrations, including Wales, receive insufficient analysis – and in some instances – virtually no analysis. In some reports there appears to be a lack of data in respect of Wales, and many lack a robust comparative analysis of the actions of the devolved administrations and the UK government.

Public Health Scotland has raised a concern about the limited treatment of public health matters specifically related to Scotland in the expert reports. This group agrees with that concern and can make the same point in relation to Wales. It’s understood that the Inquiry has asked for further work to be undertaken by certain experts on the devolved nations, and it’s very much hoped that further drafts of expert reports will be disclosed imminently. Our group repeated our earlier requests that the Inquiry instructs expert witnesses to deal with the Welsh healthcare and legal system relevant to health and inequality in Wales, as well as an expert in Welsh devolution.

The Cymru Group further notes that at present no Chief Executive Officers are to be called in Module 1 from NHS Wales to deal with structural planning. It is therefore hard to see how Module 1 will be able to consider, for example, preparedness within the Welsh NHS estate. Such high-level structural matters ought to be considered in Module 1, not least because lessons need to be learnt in Wales as soon as possible, given the continuing issue with high levels of hospital acquired Covid-19. And because, as we understand it, structural and funding matters in particular will not fall within later modules. This is potentially a grave lost opportunity.

The First Minister for Wales has relied on the UK Inquiry to justify his decision to refuse a Wales-specific Covid inquiry. It’s therefore deeply disappointing to bereaved Welsh families that, despite having sufficient time to prepare, Welsh Government is not submitting evidence in a thorough or timely manner. Equally disappointing is that Covid Bereaved Families for Justice Cymru are the only ones calling for parity for Wales in this Inquiry. Why isn’t the Welsh Government demanding that Wales has a Welsh expert involved, and that the decisions of the Welsh Government on preparedness are scrutinised in the same detail as for the UK government?

Timely and full disclosure

This, and the failure to disclose all relevant evidence at the first available opportunity, is not in the spirit of what the Welsh Government promised it would do when it refused to hold a Welsh public inquiry: to “fully engage with the Covid Inquiry”. The Covid-19 Bereaved Families for Justice Cymru calls on the Welsh Government to make a public assurance, including in the Senedd, that moving forward there will be timely and full disclosure.

The Cymru Group considers it essential that the Welsh people are kept informed of the timeliness and adequacy of the cooperation received by this Inquiry from Welsh Government witnesses, particularly in the face of that government’s ongoing refusal to hold a public inquiry in Wales. The Welsh Government started preparing for this Inquiry over 18 months ago. Yet, at the preliminary hearing, Kirstin Heaven noted that: “As of now, three out of four witness statements prepared by the Welsh Government, including that by Mark Drakeford, have not been finalised, and none of the Welsh Government statements have been disclosed. This is also the case for the statements made by the chief medical team for Wales, which are still in draft form.”

On 25 April, Baroness Hallett responded: “I remember vividly from my visit to Wales during the terms of reference consultation that there were issues that were very specific to Wales … So I do understand what you’re saying, and I will address the concerns with the inquiry team, and I hope that we’ll be able to allay any concerns in good time.” The Welsh Government response, however, was that: “We continue to engage fully with the inquiry to ensure our actions and decisions are fully and properly scrutinised. We have no control over the process by which the inquiry provides disclosure to others. Timings, in particular, are within the sole preserve of the inquiry.”

Again, lead counsel to the Inquiry Hugo Keith KC confirmed that the Welsh Government had to be reminded to disclose exhibits, so that disclosure had to be requested by the Inquiry again. He also stated that Welsh Government statements were in draft form and not signed. In light of this, the Welsh Government’s statement makes no sense.

On Friday 28 April, at just after 5pm on a bank holiday weekend, we received some further disclosure from the Welsh Government via the Inquiry team. What was formerly in draft form was clearly signed quickly after our submission on Tuesday, so it could be released. But we have not received everything, and questions remain: why were exhibits missing from statements which meant the disclosure request had to be repeated?

Covid-19 Bereaved Families for Justice Cymru asks for clarity on this from the Welsh Government: did it indeed fail to disclose all exhibits, and was it therefore asked to disclose again? And has it now disclosed all final documents to the Inquiry team, or is there still more to disclose? Without full transparency, or timeliness, we as core participants cannot fully and effectively engage in this process. With a Wales-specific inquiry denied to those in Wales bereaved by this virus, the Welsh Government UK Inquiry must ensure that Wales-specific justice, participation, and accountability are not also denied us at the UK Inquiry.