29 April 2022
On Wednesday the prime minister was asked by Daisy Cooper MP about the high court decision holding that the government had acted unlawfully in its covid guidance for care homes.
'Will the PM apologise to the families of the people who died in care homes during the pandemic?' – Lib Dem MP Daisy Cooper.
Boris Johnson: "I want to renew my apologies and sympathies for all those who lost loved ones during the pandemic."#PMQs https://t.co/Jpbt4tckaU pic.twitter.com/3jDxhLBmWy
— Sky News (@SkyNews) April 27, 2022
Hansard sets out the exchange as follows:
Note that key phrase from the prime minister:
“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”
The former health secretary Matt Hancock gave an interview to ITV News, where he said:
“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”
(The switch midway that sentence is interesting – he seems to go from wanting to say that knowledge about asymptomatic transmission had not been known earlier to carefully stating that he personally did not know.)
Hancock then put out a statement to the press as follows:
“This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts.
“The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission.”
So: is what the prime minister and the former health secretary said in response to this judgment true?
Let us see.
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The judgment contains evidence about what was said and done, and when.
The evidence does not appear to have been contested by the government in the hearing, though the government’s lawyers would dispute the weight and meanings to be placed on that evidence.
What did the evidence say?
At paragraph 65 of the judgment (emphasis on date added):
“…on 9 March [2020] the Health Minister Lord Bethell, said in the House of Lords that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit.” “
At paragraph 69 of the judgment (emphasis on date added):
“On 12 March [2020] the European Centre for Disease Prevention and Control (ECDC) published a paper entitled ‘Novel coronavirus disease 2019 (COVID-19) pandemic; increased transmission in the EU-EEA and the UK- 6th update.’ It made a number of observations about asymptomatic transmission. It noted that “over the course of the infection, the virus has been identified in respiratory tract specimens 1-2 days before the onset of symptoms…”. Referring to the Japanese National Institute of Infectious Diseases’ field briefing entitled ‘Diamond Princess COVID-19 cases update March 10, 2020,’ it observed that the virus has “been detected in asymptomatic persons. On a rapidly evolving cruise ship outbreak where most of the passengers and staff were tested irrespective of symptoms, 51% of the laboratory confirmed cases were asymptomatic at the time of confirmation”.
At paragraph 73 (emphasis on date added):
“On the morning of 13 March [2020], on BBC Radio 4’s Today programme, Sir Patrick Vallance, the Government’s Chief Scientific Advisor, said this about the means of transmission of the virus:
” “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms”.”
At paragraph 78 (emphasis on date added):
“on 15 March [2020], an important paper from Imperial College and Columbia University was published. ‘Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus’ by Li and Pei et al. discussed the transmission rate of undocumented infection.”
And so on.
The judgment also lists various papers that were published in March 2020, including a paper published on 31 March that stated:
“between a third and a half of transmissions occur from pre-symptomatic individuals.”
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That was all in March 2020 – now let us turn to April 2020.
Paragraph 286 of the judgment:
“On 2 April 2020, a week after the lockdown had been given legal effect (by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) , the Admissions Guidance was published. As noted above, this included the following about new admissions (emphasis in the original):
” “Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed. If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.” “
The court then states in the next paragraphs about this April guidance:
“there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. […]
“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
“It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance.
“It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority-based arrangements”, that is to say quarantine facilities.
“This was a significant delay at a critical period.
“We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.
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And so, as this blog set out yesterday, the court held that the April guidance was irrational in that it failed to take account of a relevant consideration – and at a time where the government was seeking to discharge as many as possible from hospital and into care homes.
This is not about whether the government knew with absolute certainty whether there would be asymptomatic transmission.
But it is about that the government knowing there was a risk before the guidance was issued.
Government ministers and their advisers had spoken expressly of the risk.
Mounting scientific evidence stated there was a risk.
Given that all this can be shown as being known in March 2020, there can be no sensible reason for the April guidance to care homes not to have referred to this risk.
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And now let us come back to the statements from the prime minister and the former health secretary.
The prime minister:
“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”
The former health secretary:
“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”
Both these statements are misleading, and indeed false.
The judgment puts together all the evidence possessed and available to the health department (and the health secretary) at the time.
The passages in the judgment where the court considers the government lawyer’s attempts to explain all this away (paragraphs 272 to 278 and 290) show just how weak the government’s position on this was.
Either the accumulated detail of the judgment of what was known and when – undisputed by the government in court – is true or the statements of the prime minister and the former health secretary are true.
But not both.
The government said it was throwing its protective arms around the care homes at that critical moment, when it was seeking to discharge as many as possible from hospital into care homes.
But the government instead issued guidance that made no mention of a risk that it knew existed – and that can be shown that the government knew existed.
And so people died.
Far from ‘clearing’ the former health secretary of ‘wrongdoing’, the judgment sets out that what was done was very wrong indeed.
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“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was.”
Looks like weasel words… but will he get away with this on the basis that it is true in a literal sense, even if they knew there was a risk?
The only conceivable defence available to the PM is that he wasn’t on top of his brief – didn’t read his paperwork, missed COBRA meetings (too busy writing a biography of Shakespeare at Chequers) – during a global pandemic. Which isn’t exactly a great look for him.
I was fairly keen on following the progress of SARS-COV-2 from about January 25, 2020, when I first became aware of it. So I have a lot of material on my hard drive. I’ve had a quick look back and searched the term “ASYMPTOMATIC” on my computer.
The first entry was for February 6, 2020. It refers to a “New England Journal of Medicine” article – first published in Jan 30, 2020. It’s titled: “Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany.”
Of course, any non-medical lay person like me with an interest in COVID was aware of asymptomatic transmissions during February 2020. It is entirely unreasonable to think that the Health Secretary had not been made aware of this during February/March 2020.
Your comment is all the more relevant given the global nature of the pandemic and the extraordinary levels of collaboration between *all* nations; sharing information, pooling research resources, frantically trying to manage the supply chain for PPE and so on.
The game-changing nature of asymptomatic transmission is *so* important that it would have been rushed to governments and decision-makers because it would warrant an immediate re-think on national strategies vis-a-vis things like lock-down, social distancing and so on.
All we can hope for now, sadly, is for a civil servant or senior advisor to stand up and say, “Actually, that is a knowingly false statement. I was in the room on date x when Matt Hancock and Boris Johnson were both briefed by Doctor y.”
Or that there is an evidentiary paper trail in the form of an email. Or that it is in the minutes of a cabinet meeting. Or similar.
It feels – no hard evidence – as though one of the greatest risks to our democracy right now is actually coming from the United States, where former President Trump is trying to re-write history by sheer force of will. His techniques of attacking detractors, stoking divisions, lying non-stop and ignoring criticisms… all appear to be making their way in to Downing Street.
Let’s hope things don’t get much worse before they get better.
Why did the government send asymptomatic passengers flying in from China into 14 days quarantine in January 2020, if they didn’t know about asymptomatic transmission?
I think they knew, Ian.
They just didn’t care when it came to care homes. Let people die there. Better than the NHS collapsing.
One of the most interesting elements of the government’s response to Covid-19 has been their reaction to the emergence of the Omicron variant.
According to Wikipedia’s summary, Omicron multiplies more than 70 times faster than Delta (in an infected person’s lungs), is similarly much more easily transmitted, but infections are 91% less fatal and carry a 51% lower risk of hospitalisation.
Now, neither our government nor any other that I’m aware of came out publicly and said, “Look, we’d be rather delighted if everyone went out and became infected with Omicron, because the chances of you surviving it are as good as we can hope for… and that means that we can start to build up some herd immunity in a way that’s cheaper than having to keep on giving people vaccine boosters…”
Yet that seems to have been their strategy in a nutshell.
When Delta came along and was quickly shown to be far more dangerous, did they make any adjustments? Strengthen quarantine? Restrict flights? Anything? Don’t think so.
It really seems as though the government have been callous beyond words from the outset. They’re just very good at hiding it.
Surely in the next PMW’s Sir Keir Starmer can now lay down a physical copy of the court judgement before Mr Speaker and then quote to the House the answers of Johnson & Hancock and ask the PM which of the two is the truth?
Wes Streeting asked Hancock about asymptomatic transmission in the Commons on 16 March, a week before the first lockdown: https://hansard.parliament.uk/commons/2020-03-16/debates/235689EC-0A18-4488-BFCF-9F012A1A0C1B/Covid-19#contribution-165604A3-522E-43E7-A1B0-7E7EC504BAEF
Or https://www.youtube.com/watch?v=-u9LEj3JJok&t=4535s if you prefer
Hancock was aware of this risk: asked about virus being “particularly contagious at the early stages before symptoms present”, Hancock says he is taking steps to “reduce the sorts of transmissions that he [Streeting] talks about”.
Indeed, that very day, in the same debate, Hancock was saying “we are today advising that if you or anyone in your home has a high temperature or a new and continuous cough, you should stay at home for 14 days” (and that applied, whether or not you have symptoms yourself – if you are living in close contact with someone who does, you should self isolate).
Pinched from Wikipedia – “Reality based community”:-
The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ […] ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do’.[2]
I am afraid some of you lawyers are living in ‘the reality based community’. That so no longer matters to Boris, Hancock et al.
I believe the term “gaslighting” refers to the practice of convincing a victim that something real isn’t, actually. The anonymous aide (Karl Rove) quoted above, may have been carrying it to new depths, viz., making millions of victims doubt the possibility of reality. If he wasn’t, his heirs certainly have done and continue to do so. Given the meanings of “possibility” and “reality”, such doubts are absurd. But absurd things happen, such as neurologists telling us that we don’t think — we only think we do. (I hope I’ve got that right.)
Regarding Boris, Hancock et al., an old lady in the Highlands or the Western Isles (I find it hard to distinguish between them), of fiercely Presbyterian persuasion, was interviewed upon attaining a great landmark age. In the course of the interview her oft-expressed opinion that only she and her local parish minister were worthy to enter the Kingdom of Heaven was raised.
“Is that really what you believe?” the reporter asked.
“Weel,” she replied, “Ah hae ma doots aboot the minister.”
A possible (and possibly forgivable) explanation for what happened was that there was a deliberate utilitarian decision made to clear hospital beds for those most likely to benefit. This sort of decision making occurs daily (and not always consciously or explicitly) in critical care on a smaller scale.
What is not forgivable is the subsequent lying and arse covering by those ultimately responsible. A more honourable approach would have been honesty from the outset.
A question rather than a comment:
The high court finds that the government acted unlawfully. There are two particular ministers who bear obvious responsibility for the government’s actions in this matter. What consequences for those ministers follow from the court’s finding?
All the exchanges here, in the Chamber or elsewhere, in which Johnson and Hancock perform various epistemological contortions, relate solely to potential political consequences. There are no other sanctions?
It’s wearying to see the number and variety of verdicts, views, conclusions and findings that can formally identify wrongdoing by the Executive or particular ministers and that none of it leads to any kind of enforceable consequence. Naively you’d think a body called ‘the high court’ would be able to impose some kind of enforceable sanction.
I know. I know.
It appears that both Hancock’s and the PM’s political defence is – officials knew but no-one told me.
The guidance signed off by Hancock was irrational, and the legal judgement doesn’t really care if Hancock personally knew about asymptomatic transmission when he signed – just that he should have.
I don’t see where the evidence in the case contradicts the “I personally didn’t know” defence.
(I know it is an appalling political defence, where ministers demand power without responsibility and takes personal incompetence as the basis of a defence – but politically it might be effective none the less)
It’s quite clear that Hancock was aware of the issue of asymptomatic transmission – below is an exchange from Hansard a full 5 weeks before his fateful decision of April 2. At this stage he suggests that his advice is that asymptomatic transmission doesn’t occur.
His problem is that over the next five weeks many major UK and world medical figures (Vallance, Fauci et al) and the CDC became very clear in public that asymptomatic transmission does occur. So, when Hancock said about his gut feel regarding asymptomatic transmission – “But when you are faced with a global consensus, and you do not have the evidence that you are right and scientific consensus is wrong, it is hard to do that” then he’s rewriting history. He could have made that argument on Feb 2, or even Mar 2 at a pinch – but not on April 2, 2020.
HANSARD WEDNESDAY 26 FEB 2020
Dr Philippa Whitford
(Central Ayrshire) (SNP)
………As the Secretary of State said, there is only a small window of opportunity when it is possible to prevent or contain the initial spread of coronavirus. As I have previously said, I am concerned about not self-isolating asymptomatic people, particularly when we are aware that the case that spread the condition to others in the UK involved someone who was not significantly symptomatic. We do not know what the prodromal phase of coronavirus is, and people could be spreading the condition without our knowledge. The advice must be clear……
Matt Hancock
….I am afraid I do not recognise some of her clinical observations… I am very happy to ensure that she receives a full briefing from medical experts, so that she can get the clinical points right……….
It strikes me that Johnson simply and knowingly lied to Parliament when giving this answer.
For decades, Ministers have had Civil Servants to take the bother out of discovering the truth so that they can be briefed. They all now have Spads as well. If none of Boris’s Spads briefed him on this problem, now is the time to sack every single Spad in Westminster on the grounds that they have been shown to give no benefit to the country.
It struck me that a lot of the analysis of whether Johnson or Hancock knew about asymptomatic already is moot, because of they did not, the court could not have found them to have agreed illegally.
The fact that the court found them to have acted illegally therefore is sufficient to demonstrate that they knew.
Sorry, a couple of nasty typos there.