Transcript of Module 1 Preliminary Hearing on 4 October 2022

(10.00 am)

Opening Remarks by Lady Hallett

Lady Hallett: Good morning. The UK Covid-19 Public Inquiry was established to examine, consider and report on the UK’s preparations for and the response to the Covid-19 pandemic. This is our first public hearing.

There is one word that sums up the pandemic for so many and that is the word LOSS. Although there were positive aspects of the pandemic, for example, the way in which communities banded together to help each other and the vulnerable, millions of people suffered loss, including the loss of friends and family members, the loss of good health, both mental and physical, economic loss, the loss of educational opportunities and the loss of social interaction.

Those who were bereaved lost the most. They lost loved ones and the ability to mourn properly. It is therefore right that we begin this first hearing with a minute’s silence for those who died. So would those of you who are able to do so, please stand for a minute’s silence.

The Inquiry will analyse our state of readiness for the pandemic and the response to it, as I’ve said, and to determine whether that level of loss about which we have just been reflecting was inevitable or whether things could have been done better. My principal aim is to produce reports and recommendations before another disaster strikes the four nations of the United Kingdom and if it is possible to reduce the number of deaths, the suffering, and the hardship.

To that end, I’ve set an ambitious timetable and the Inquiry team are working extraordinarily hard to meet it. I will need the full co-operation of the Core Participants, witnesses, holders of documents and information and experts. I have a duty to the public to conduct a thorough, fair and independent inquiry for the whole of the United Kingdom and I intend to do so. I am acutely conscious that different parts of the United Kingdom, different communities and different groups of people suffered in different ways, and the Inquiry team and I will ensure that we listen to them and learn from them. Throughout the Inquiry, we shall have the impacted on them at the forefront of our minds.

I am also determined that this Inquiry will not drag on for decades, producing reports when it is too late for them to do any good.

But my terms of reference cover a huge breadth of issues, and I shall not be able to produce reports and recommendations in a timely manner, if I grant every application for core participant status, if we cover every issue that people want covered, if we call for every document, examine every witness or cover every issue in as much detail as some may wish.

There is a balance to be struck between making timely recommendations and the extent to which we explore every issue, a balance recognised by many of the bereaved to whom I spoke during the public consultation on the Inquiry’s terms of reference.

I assure them and the rest of the public that I will do everything in my power to ensure we achieve a sensible and fair balance and that the Inquiry is as thorough as possible. I will consider submissions on the various issues and that balance should be drawn before I reach any conclusion. No decision will be taken lightly.

One of my earliest decisions was to break the issues into several modules and to assign members of the legal team and the secretariat to each module. Each module involves a gathering of evidence, (a process that has already begun) followed by the public hearings. We cannot hold hearings into each module at the same time and they will therefore be heard in sequence.

But I wish to emphasise that the order of the modules does not indicate that I consider the issues in later modules to be of any lesser importance, and the teams assigned to them will be working on them whilst the other modules are heard. Furthermore, the order and broad scope of the later modules are not yet set in stone.

For the avoidance of doubt and to allay concerns expressed in the media over the weekend, I should point out that the standard of care given to those suffering from Covid, including the triage system and the use of DNR notices, is very much an issue that I intend to explore and about which I shall receive evidence in a later module.

I have also had to decide on the designation of Core Participants for this, the first module. For those who have not been designated a Core Participant for Module 1, I hope they understand that my decision does not mean I have concluded their concerns are not legitimate or that they will not be addressed. If they are reasonable, my independent legal team will investigate them robustly and pursue them either in Module 1 or in what we consider to be a more appropriate module or modules. They may wish to apply for CP status in that later module or modules.

Even if they do not apply again or have not yet applied for CP status, they can still contribute to the Inquiry. There will be many ways in which individuals and organisations can do this, for example, by providing information or evidence to the Inquiry or suggesting lines of enquiry to the legal teams.

Alongside the preparation and hearings of the modules, I intend to conduct a listening exercise. Again there has been some reporting over the weekend about the design of and intent behind the proposed Listening Exercise. So let me explain a little more.

Our intention in conducting the Listening Exercise is to ensure that everyone across the UK who wishes to contribute to the Inquiry can do so in a less formal setting. People will not have to wait for the module in which they have an interest to be heard, and they will not have to give evidence at the public hearings, but their contributions will inform the Inquiry. It will provide valuable evidence to the Inquiry about the impact of the pandemic. I wish to emphasise that the fact that someone contributes to the Listening Exercise will not prevent them from giving evidence at the public hearings of the Inquiry if they have relevant evidence to give. I have taken no decisions as yet on the witnesses to be called, so no-one has been barred from giving evidence.

We shall also find an appropriate way or ways to commemorate those whom we have lost. In planning and designing the Listening Exercise, and commemoration, we shall ensure that those most affected, in particular the bereaved, are properly consulted. I promised the bereaved during the consultation process on the terms of reference that those who have suffered will be at the heart of the Inquiry and I intend to keep that promise. As I’m sure they will understand, that does not mean that I can or should consult them and the other Core Participants at every single stage of our preparation. If I did that, the Inquiry would go on forever.

But today I do invite further submissions on the Listening Exercise and other issues and, thereafter, we shall of course be listening to the most affected as we design the Listening Exercise and the commemoration or commemorations.

This is a preliminary hearing for Module 1 preparedness and resilience. Several of the Core Participants have provided extremely helpful and constructive submissions and within a tight time-frame. I am very grateful to them. Some of the issues raised may be more relevant to later modules. I simply ask everyone to keep their oral submissions today as succinct as possible and to focus on the issues that I have to consider today.

Mr Hugo Keith, King’s Counsel, Counsel to the Inquiry will now set those issues out. Mr Keith.

Opening Statement by Mr Keith

Mr Keith: My Lady, by way of brief introduction what I’m going to do is commence by setting that arrangements for today’s hearing and then introduce the Core Participants. I will then turn to say a little about the background to and commencement of this Inquiry before introducing this module, Module 1, and addressing some of the legal issues that arise and which, my Lady, you have prefaced.

The practical arrangements starting necessarily with the arrangements for today, these proceedings are of course being recorded and live streamed to other locations. May I say this has certain benefits. It allows the hearing to be followed by a greater number of people than would be able to be accommodated within this hearing room or any overspill room. Also in accordance with section 18 of the Inquiries Act 2005, my Lady, you are obliged to take such steps as you consider reasonable to ensure that members of the public are able to attend or see and hear a simultaneous transmission of the proceedings. Live streaming goes a long way to satisfying that obligation.

Also, I need to say that as is routine in public inquiries where there may from time to time be matters mentioned of a potentially sensitive nature, the broadcasting of the hearing will be conducted with a 3-minute delay, and this provides the opportunity for the feed to be paused if anything unexpected is aired which should not be but, my Lady, we don’t expect any such matters to arise in the course of today.

Representation. Let me turn to that. Present today, whether in person or remotely, and excluding myself and the Inquiry legal counsel and solicitor team who are here, are counsel and solicitor teams representing 28 Core Participants in Module 1. All the Core Participants are therefore legally represented. I don’t propose to read out the names of the legal representatives. My Lady knows well that they are set out at tab 4 of your bundle. Of those legal representatives, I believe that 22 are present before you today and six are attending remotely.

Then most important, the Core Participants. The Core Participants know who they are, but I should explain for the others that they are entities, organisations or persons with a significant legal interest in Module 1 and who therefore have enhanced rights to participate in this process. Each of them, those appearing before you today, remotely or in person, were granted this status by you for the purposes of this module under Rule 5 of the Inquiry Rules. The list of the Core Participants is also in your bundle but I intend to read them out so that we all know who they are. There is no significance in the order of the names that I will read.

Covid-19 Bereaved Families for Justice; Scottish Covid-19 Families for Justice; Covid-19 Bereaved Families for Justice Cyrmu; Northern Ireland Covid-19 Bereaved Families for Justice; the Chancellor of the Duchy of Lancaster (the Cabinet Office); His Majesty’s Treasury; the Secretary of State for Health and Social Care; the Secretary of State for the Home Department; the Secretary of State for Business, Energy and Industrial Strategy; the Secretary of State for the Environment, Food and Rural Affairs; the Office of the Chief Medical Officer; the United Kingdom Health Security Agency; NHS England; the Government Office for Science, the Association of Directors of Public Health; Imperial College of Science and Technology; represented legally together, the Local Government Association and the Welsh Local Government Association; the National Police Chiefs’ Council; Scottish Ministers; Public Health Scotland; NHS National Services Scotland; the Welsh Government; Public Health Wales; the Executive Office for Northern Ireland; the Northern Ireland Department of Health, the Trades Union Congress (the TUC), and the British Medical Association (the BMA).

My Lady, Core Participant status brings of course significant procedural advantages. Core Participants get access to the disclosed documents. They will get to make submissions on the course and mechanics of your Inquiry. They will get to raise specific questions and assist you in ensuring that the Inquiry can discharge the formidable duties imposed upon it.

May I say something straight away about those duties so that there is no doubt. That duty as you have explained it is to get to the truth, to ensure that the full facts are revealed, that culpable and discreditable conduct is exposed and brought to public notice; that plainly wrongful decision-making and significant errors of judgement are identified; and that lessons may be properly learnt. The bereaved and those who have suffered are absolutely entitled to no less.

The extent of the collaborative approach required between the Inquiry and the Core Participants and, in particular, the bereaved groups is an issue that has been raised before you in the written submissions, and it is important that I address it now. In deference to the importance of the role that the Bereaved Families for Justice organisations play and your stated wish that the Inquiry foster an atmosphere of inclusion, there has been extensive communication already between you, your team and those groups.

Even before the Terms of Reference were finalised, the Inquiry team was working closely with all the Bereaved Families for Justice organisations and I know, my Lady, that you are grateful for their assistance in the terms of reference consultation exercise that took place in March when you met bereaved families across the United Kingdom.

The views they shared, including on issues like DNAPRs, do not attempt cardiopulmonary resuscitation decisions and end of life care, informed your recommendations for changes to be made to the scope of this Inquiry, all of which proposals the then Prime Minister accepted.

We have also had a number of meetings. There has been some small disappointment expressed from one quarter that the Inquiry team did not add to the agenda items proposed by some of the groups for those meetings, but may I say that the agendas were only provided shortly before the meetings. But, in any event, we were and remain completely happy to be guided by them as to what they wished to raise with us.

There have also been multiple calls and a significant amount of correspondence. Indeed, the solicitor to your inquiry, Mr Martin Smith, has engaged with the Bereaved Families for Justice groups more than with any other Core Participant, and I should also observe that they have benefited from your 28 March 2022 decision to grant legal costs in connection with the consultation process. They have also received a section 40 determination to cover costs from 28 July immediately after Module 1 had been opened.

So may I also make clear that the Inquiry team is genuinely grateful for all the contributions from them and from the other core participants both before this hearing and in the written submissions.

Frankly, in this unprecedented and vast and difficult undertaking the Inquiry team needs the insightful and sensible assistance of all the Core Participants. A list, my Lady, of the Core Participants that you have designated will of course be published on the website in due course.

Turning to the written arguments which have been produced for this morning, my Lady, as you know, you have had notes from myself and Ms Blackwell, assisted by the very able junior counsel team that help us, as well as from Mr Smith, sent out in advance of the preliminary hearing.

The Inquiry has received eight written submissions in response, one of which is a joint note submitted on behalf of Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice. The majority of the remainder of Core Participants have kindly indicated that they don’t wish to make oral submissions and have not filed written submissions.

The written submissions have, obviously, all been circulated around the Core Participants. So, my Lady, what I propose to do is to say something about the background to the Inquiry, its commencement and procedures so as to illuminate and highlight the issues which arise for ventilation today.

I don’t propose to answer all the points made in the written submissions. I will reserve my position in respect of some or all of them until they have been developed by the Core Participants in their oral submissions.

My Lady, the Inquiry understands that eight of the Core Participants before you want to make oral submissions. So, after my opening remarks, you will of course be hearing from them following a speaking order that you have had drawn up.

To aid the better recollection, if it be needed at all, of the devastating impact of the Covid-19 pandemic and to reinforce the utter seriousness and extent of this inquiry’s task, it’s necessary to set out the briefest of chronologies of the early stages of the pandemic. For many, including some here today, they will never be forgotten, but it is remarkable how with the passage of time we have allowed some of those terrible details to be forgotten.

My Lady, as your opening statement recalled, in late December 2019 a cluster of cases of pneumonia of an unknown aetiology was detected in Wuhan City, Hubei Province in China. A new strain of coronavirus was subsequently isolated on 7 January. It was identified as Severe Acute Respiratory Syndrome-Coronavirus 2 SARS-Cov-2.

On 21 January the World Health Organisation published its Novel Coronavirus 2019-nCoV Situation Report 1. It recorded that, as of 20 January, 282 confirmed cases of 2019-nCoV had been reported from four countries including China, Thailand, Japan and the Republic of Korea. On 30 January, the second meeting of the International Health Regulations Emergency Committee of the World Health Organisation declared a public health emergency of international concern but it didn’t recommend any travel or trade restrictions.

The virus and its associated disease Covid-19 spread rapidly. On 15 February, France recorded the first official death in Europe from Covid-19. By late February, the number of cases of Covid-19 outside China had increased 13-fold and the number of affected countries had tripled. A worldwide public health emergency ensued and, on 11 March, the World Health Organisation declared Covid-19 to be the first coronavirus pandemic.

As few on this planet will be unaware, Covid-19 has killed millions of people worldwide and infected many millions more. As of 20 September of this year over 609 million confirmed cases of Covid-19, including around 6.5 million deaths, have been reported to the World Health Organisation. Some estimates of death put the figure for estimated deaths from Covid-19 at 17.5 million.

The pandemic has led to financial and economic turmoil. It has disrupted economies and education systems and put unprecedented pressure of national health systems. Jobs and businesses have been destroyed and livelihoods taken away. Communities, especially the poor and vulnerable, have been devastated and existing inequalities have been widened and exacerbated.

The disease has caused widespread and long-term physical and mental illness, grief and untold misery. Its impact will be felt worldwide, including in the United Kingdom, for decades to come.

As everyone here will recall, on Monday 23 March 2020 the then Prime Minister announced severe restrictions on the entirety of the United Kingdom in what became known as the first national lockdown. My Lady, I don’t propose to say more about the events leading up to that cataclysmic moment in the life of this nation because for this preliminary hearing it’s not required, and their detail will in any event be a matter for you of course to determine. But vast swathes of human and social activity were ordered to be curtailed and much of public life halted. Almost every area of public life across all four nations, including schools, the transport system, the justice system, prisons, the majority of public services, were all adversely affected. Hospitality, retail, travel and tourism, arts and culture and the sport and leisure sectors effectively ceased to operate; even places of worship closed.

Whilst the number of deaths rose, the NHS, the police and emergency services and other key workers continued in their places of work. Almost everyone else was forced to work or be educated from home.

The months and years that followed saw death and illness on an unprecedented scale. Recent figures calculate that in England there have been 165,806 deaths within 28 days of a positive test or 171,764 deaths where Covid-19 was recorded on the death certificate. The Office of National Statistics provides weekly figures for deaths that are so registered. In Scotland the figures are no less terrible: 12,389 and 15,555 by those two measures as of 4 September; in Wales, 7,844 and 10,675; and in Northern Ireland 3,445 and 4,832.

By an alternative measure of excess deaths or excess mortality, that is to say the number of deaths from all causes above and beyond what would be expected under normal conditions, i.e. had the pandemic not occurred (so capturing not only confirmed deaths but also Covid-19 deaths that were not correctly diagnosed or reported as well as deaths from other causes attributable to the pandemic) the figures are likely to know higher still.

Beyond the individual tragedy of each and every death, it is clear the pandemic placed extraordinary levels of strain on the UK’s health, care, financial and educational systems, as well as on jobs and businesses. It affected the health and well-being of vast numbers of people, particularly vulnerable groups, including people with disabilities, the clinically vulnerable, the mentally ill, ethnic minority groups, older people, children, and those living in deprived areas. The cost in human and financial terms of bringing coronavirus under control has, my Lady, been immense. Government borrowing and the cost of procurement and of the various job retention, income, loan, sick pay and other support schemes has severely impacted public finances and our financial health.

Concern has been expressed from many quarters that poor health and existing inequalities have left parts of the United Kingdom more vulnerable to the disease and that the restrictions imposed on the country have led to unmet health needs, damaged educational prospects and financial insecurity. Societal damage has been widespread, with existing inequalities exacerbated and access to opportunity significant weakened. The impact on the NHS, its operations, its waiting lists and elective care has been similarly immense.

My Lady, this Inquiry has been constituted to investigate on behalf of the bereaved and those who have otherwise suffered, as well as the wider public whether anything could have been done more to prevent their loss or reduce their suffering. More specifically, in this module, they are entitled to know whether the United Kingdom and its systems for preparedness and response could have been better. Only in this way, as you have said, can proper and effective recommendations be drawn up to protect the country better from pandemics, whether caused by future coronavirus variants or some other forms of disease and also from comparable civil emergencies. Given the sheer extent of the impact of the pandemic and the Government decision-making that was required across such a very wide range of areas, it is little surprise that this Inquiry will be no less complex and multifaceted.

May I therefore turn to say something about the commencement of the Inquiry so that its legal foundations and scope can be properly understood and the work that has already been done brought to public attention.

On 12 May, the then Prime Minister made a statement in the House of Commons in which he announced there would be a public inquiry under the Inquiries Act 2005. On 15 December as the sponsoring minister he appointed you, my Lady, as Chair. In the written appointment letter, the Prime Minister confirmed that he would be consulting with ministers from the devolved administrations. Such consultation is required by section 27 of the Inquiries Act 2005 to enable the inclusion in the terms of reference of an inquiry for which a United Kingdom minister, including the Prime Minister, is responsible of anything that would require the Inquiry to determine facts and make recommendations wholly or primarily concerned with a Scottish matter or a Welsh matter or a transferred Northern Ireland matter.

Draft terms of reference were drawn up making clear that the Inquiry would consider and report on the State’s preparations and response to the pandemic and would consider reserved and devolved matters in those nations in respect of which there had been a need for such consultation.

On 10 January, you wrote to the Prime Minister recommending certain amendments to ensure greater clarity and to enable you to conduct the Inquiry at an appropriate pace. You also sought an express mandate permitting the publication of interim reports.

In addition, importantly, given your view that the Inquiry would gain greater public confidence and help the nation come to terms with the pandemic if it was open to the accounts that many people would wish to give, you suggested adding explicit acknowledgement of the need to hear about people’s experiences and to consider any disparities in the impact of the pandemic.

On 4 February the Prime Minister responded accepting, with some minor irrelevant changes or minor caveats and a small number or textual refinements, the detailed changes that you had proposed.

On 10 March, having consulted with the ministers from the devolved administrations in the way that I’ve described, he wrote to you to inform you of certain further changes which had been made in response to their comments. The same day, the draft terms of reference were published.

You then wrote an open letter to the public in which you announced the launch of a public consultation process on the draft terms of reference. The consultation document sought the public’s views on whether the Inquiry’s draft terms of reference covered all the areas that they thought should be addressed and on whether the Inquiry should set a planned end date. The consultation was open to everyone, and the public could contribute on the Inquiry’s website by email or by writing.

You consulted widely across all four nations, visiting towns and cities across England, Wales, Scotland and Northern Ireland and speaking, in particular, to a number of the bereaved. In parallel, your team met with representatives or more than 150 organisations in round table discussions, covering themes such as equality, and diversity, healthcare, business, and education, and young people among many.

In total you received over 20,000 responses to the consultation. An independent consultancy team was commissioned to analyse the response. They produced a comprehensive report summarising those views and the key themes that emerged. So, in light of that process and the many thousands of views expressed, you recommended a number of further changes to the draft terms of reference. You wrote asking that those changes be made. They were all accepted in full.

So on 21 July the Inquiry was formally opened, and you announced the decision to conduct the Inquiry in modules. This module concerns of course resilience and preparedness prior to the pandemic, but I need to say just a little bit more about the overall width of the Inquiry to show that this module forms only one part of it.

Module 2. The provisional outline of its scope was published on 31 August. It will look essentially at the core political and administrative governance and decision-making in the United Kingdom concerning the high-level response to the pandemic from January 2020 onwards. It will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet as advised by the Civil Service, senior political scientific and medical advisers as well as relevant Cabinet subcommittees.

It will examine Government structures and bodies concerned with the response, the initial understanding and response to the nature and spread of Covid, the Government’s initial strategies, the decision-making relating to the non-pharmaceutical interventions, the national lockdowns, the restrictions, the circuit breakers, the working from home, the orders to reduce person-to-person contact, social distancing, and so on.

But also their timeliness and reasonableness, including there likely affects had decisions to intervene been taken earlier or differently.

Importantly, the degree to which Government looked at and considered the risk on vulnerable groups and others. Access to and use in decision-making of medical and scientific expertise, data collection and modelling, public health communications in relation to steps taken to control the spread of the virus – this is transparency of Government messaging, the use of behavioural management and the maintenance of public confidence. All those as I say are for Module 2.

This Inquiry is obliged under section 27 of the Inquiries Act as well as its terms of reference, as I’ve said, to consider both reserved and devolved matters in respect of Scotland, Wales and Northern Ireland. So having considered the picture in Module 2 from a UK-wide and also English perspective, Modules 2A, 2B and 2C will address the same overarching and strategic issues from the perspectives of Scotland, Wales and Northern Ireland. But obviously, on account of the fact that an Inquiry has been established in Scotland to look at matters devolved to the Scottish Government, your intention in relation to Scottish matters has been to seek to minimise any duplication that might arise, and so a memorandum of understanding is already under discussion to guide both Inquiries in their communications with document providers, potential witnesses and other sources of information material to ensure the minimum degree of overlap.

Module 3. It will examine the impact of Covid and the governmental responses on the healthcare systems generally across the United Kingdom. It will investigate the general impact of the pandemic on the healthcare systems, governance, hospitals, primary care, NHS 111 services and ambulance services. It will address issues such as the use of Do Not Resuscitate orders – rationing of critical care, capacity, triage systems, the shielding and care of extremely vulnerable, NHS backlogs and waiting times and the treatment of those suffering from long Covid.

Later modules, details of which will be published in the coming months, will address very broadly system and impact issues across the United Kingdom, vaccines, therapeutics, the care sector, Government procurement and PPE, testing, trace, Government financial responses. The impact modules will look at health inequalities and the impact of Covid on the education and business sectors, children and young persons, on public services and on other public sectors. Hence, my Lady, the unprecedented and ambitious nature of this Inquiry.

Module 1’s scope. The document setting out the provisional outline of scope for this module has been published on the Inquiry website and I don’t propose to read it out. The outline of scope document was expressly designed to be provisional so that Core Participants could see that they were being invited to comment on its further development as, indeed, they have.

In essence, the module is concerned with high level pandemic resilience, preparedness and planning across all four nations.

It will examine whether the correct structures, bodies, procedures and policies were in place at UK and at regional and national levels and look at their history, development, co-operation and performance.

In terms of enquiring into pandemic planning, this will include examination of the forecasting processes, the extent to which past knowledge of actual events and simulated exercises were learnt from. The degree of readiness preparation and the general resources that were available.

International comparisons will be drawn, and the funding capacity and maintenance of emergency planning and public health structures examined. This will include any impact arising from the United Kingdom’s departure from the European Union.

Evidence will be given in relation to the planning for future pandemics, including the forecasting of new Covid-19 variants, the other viruses of concern, and diseases resulting from viral transmission from animals.

But that scope, my Lady, although it introduces a wide range of areas, cannot at this stage be readily determined in detail. It’s neither practical nor advisable to identify now all the granular issues that will be addressed at the Module 1 hearing, let alone the questions that will arise forensically.

Concern has been expressed by one Core Participant that the scope of Module 1 has been limited in some way by the wording of the decision letter in the case of that Core Participant to grant it Core Participant status. May I say therefore that the reasoning in that letter did not and could not purport to reflect the entirety of the Module 1 scope.

My Lady, the issues will obviously be further developed once the responses to the majority of the Rule 9 requests for evidence have been received and analysed. But a number of very helpful suggestions have been made by the Core Participants concerning scope by way of identifying changes in the direction or specifying particular areas for investigation in Module 1 and I know, my Lady, that you and the team would wish to reflect on them all but may I just make a number of points as to how we propose to do so.

We will approach those suggestions from the Core Participants with an open, indeed eager, frame of mind. It serves absolutely no purpose whatsoever for us to expend the time, energy and cost in designing and holding a Module 1 public hearing only for issues of real importance not to be explored.

Secondly, this is only the first module. It is designed to investigate the general state of the United Kingdom’s resilience and preparedness or lack thereof. It cannot be used as a vehicle to front-load others issues better suited for scrutiny later in the Inquiry.

Third, that scope document is meant only to be a generic guide. As I’ve said, the actual scope and the issues in question that will arise for scrutiny will be far better assessed by reference to the forensic trawl that is this process of gathering up documents, statements and information from Core Participants, from evidence providers, holders of documents and many, many more entities.

That process is designed to sweep up a significant body of documents and statements from which the issues can then be identified and developed.

Lastly, my Lady, as you said in your opening statement in July and again today, with such a wide scope, the Inquiry needs to be ruthless in its selection of issues and relentless in its focus on matters of real importance. It is simply not possible to examine every issue, even if thematically within the reach of Module 1, or to call every witness relating to every event, issue or major decision.

What is instead required is a carefully judged assessment of what really matters.

I’ve mentioned the Rule 9 requests. May I say a little more about them. Since the start-up date of 21 July, a huge amount of work has been done in terms of resourcing and staffing the Inquiry, setting up the legal teams, identifying hearing venues, responding to public communications, and setting this module on its way. The Inquiry has also identified and published the scope documents, the outline of scope documents, as I have said, in relation to modules 2, 2A through to 2C. It’s also prepared the groundwork for the later modules which will follow in quick succession, and there is also then the Listening Exercise.

But, importantly, the Inquiry has already issued formal requests for evidence pursuant to Rule 9 of the Inquiry rules to the following organisations which appear to us to have played a central or significant role in relation to the United Kingdom’s resilience, plans and preparedness, the Cabinet Office, the Department for Levelling Up, housing and Communities and the Department of Health and Social Care.

My Lady, those Rule 9s are lengthy, complex and wide-ranging. They request information and documents (including policy documents, agendas, meeting notes and minutes) and the identities of key figures and decision-makers (including ministers, civil servants and advisers) relating to relevant decision-making on preparedness between June 2009 when the World Health Organisation announced the scientific criteria had been met for an influenza pandemic, what became known as the swine flu pandemic, and 21 January 2020, the date upon which the World Health Organisation published its Novel Coronavirus Situation Report number 1.

The areas of enquiry range widely. They have been made, or the enquiries by way of Rule 9 have been made, in relation to development and functions of relevant organisations; resources and levels of funding; the monitoring, and communication of new and emerging infectious diseases; the duties and responsibilities under the Civil Contingencies Act 2004; policies and operational strategy, including those set out in various pandemic preparedness strategy documents and reports.

We have sought explanation and analysis of the Government’s forecasting of influenza and high-consequence infectious; diseases of institutional learning and the simulation and real exercises from Exercise Winter Willow in 2007 through to Exercise Pica in 2018.

We have sought information relating to public health services and resources, the stockpiling of essential resources, co-operation between Government and devolved administrations, regional local government, and expert advisory groups and public sector bodies.

We’ve sought the disclosure of key actions, activities, initiative, policies and publications. In the next few weeks Rule 9 requests will also be sent to the United Kingdom Health Security Agency, his Majesty’s Treasury, the Welsh Government, the Government of Northern Ireland and the Scottish Government. The Trades Union Congress has helpfully suggested adding the Health and Safety Executive, and we will reflect on that.

The Rule 9 requests are being issued on an iterative basis as part of which further requests will then be made of the recipients focusing on particular issues or topics. We will issue further Rule 9 requests on a rolling basis to other organisations.

Some have asked in their written submissions whether we will disclose the Rule 9 requests themselves, the requests made of all those various entities. In my submission, my Lady, that is, however, neither required by the rules nor established by past practice. It is, we suggest, furthermore, not practicable. Given that all or almost all the Rule 9 requests will be superseded and built upon by further iterative requests from the Inquiry team itself, disclosure of each Rule 9 request serves we suggest no purpose.

Some Core Participants have raised the issue of position statements by state bodies and organisations. So, my Lady, the proposition before you in some of the written submissions is that position statements, if ordered, would assist you by enabling you to target further disclosure, hone the expert evidence and tailor the hearings to those areas that are actually in dispute or are unclear.

We suggest, with respect, however that the foundational principle that this argument is based upon may not be correct in the circumstances of this Inquiry. You will of course be reflecting on all the submissions. But may I introduce a note of caution. Position statements are in effect a form of pleading, but they are not a required feature of Inquiry proceedings which are of course not adversarial.

In any event, we rather doubt whether such statements would help to narrow issues and, therefore, save time and cost. Written clarification of a document provider’s position whether in a position statement or otherwise, can really only be done at a point when that entity is sufficiently sighted on the issues, the disclosure that enables their proper examination, and their own position. So to start the Inquiry process with a position statement is to jump the gun.

Asking entities to commit to a committed position at an early stage is therefore liable to lead to delay in the commencement of the process because, in this complex forensic picture, it’s likely to take months for them to be able to assemble sufficient documentation for them to identify their position, then form it and then commit to an inalienable position on paper.

My Lady, this Inquiry is in truth an inquiry into myriad decisions and complex decision-making. It’s not an inquiry into an easily identifiable event or action as to which document providers and decision-makers might be expected to have a pellucid position. It’s not an inquiry limited by a single event, a short passage of time, a place, or a limited course of Government or State conduct, a crash, air crash, an explosion, a shooting or a single terrorist attack. Nor is it limited by place (as with the Sizewell Inquiry or the Inquiry into the Bristol Royal Infirmary Hospital), or by connection to a person, or even a particular decision or policy or course of behaviour (such as the Infected Blood Inquiry or the Post Office Horizon Inquiry).

You will be scrutinising Government decision-making made by a very significant number of bodies and individuals over many years, even in this module a complex and multi-layered task and, therefore, it simply doesn’t readily lend itself to the preparation of position statements.

But may I say that you know, my Lady, that you will and you have already started seeking corporate witness statements as well as making those more directed requests of which I have spoken, and those statements will naturally reflect the particular entity’s position but they will have a far better foundation.

I then turn to disclosure. There is no express requirement for disclosure contained in the Act or the Rules. The reason why of course inquiries give disclosure is because the obligation arises from your overarching obligation to act fairly under section 17(3) of the Act, and Core Participants must have disclosure of relevant documents in advance of the public hearing to enable them to contribute meaningfully to the process.

Plainly, to make sure that the Inquiry is in a position to disclose relevant material, we will be casting our net more widely when gathering it in. The Inquiry does this by asking document providers for material that is likely to be relevant to the issues that will arise in the course of the module. Therefore, it is neither necessary nor proportionate for the Inquiry to disclose every document that it receives or every request that it makes or every piece of correspondence. That is not required, and it would hinder the Inquiry in the performance of its functions.

In particular, the documents received from document providers can’t be provided without that sift for relevancy and for utility. It would be a derogation of the Inquiry’s functions simply to pass everything on to the Core Participants.

But may I say that, as an Inquiry team, we will of course be giving regular disclosure updates on which we can report on the progress which is being made. We don’t propose only to provide Core Participants with documents relevant to them; all Core Participants will receive the same documents for the particular module.

Third, we’ll provide all relevant documents that the Inquiry’s received subject to a de-duplication exercise and appropriate redactions in accordance with the redactions protocol.

But lastly, we don’t propose to provide a document protocol. I have set out our general approach, and the provision of protocols for protocol’s sake assist no-one.

My Lady, it’s likely that we’ll be making disclosure in tranches as opposed to documents being made available as soon as they are provided to us.

Lastly, some Core Participants have requested that document providers sign a statement explaining how they’ve secured the preservation of documents, how they’ve conducted their own searches, and how they have satisfied Limited themselves that they’ve complied in full with their duties. I can say that each provider has been asked or will be asked to provide an account setting out details of how the documents were originally stored, the search terms used or other processes used to locate documents, and the nature of any review carried out by them.

Where we have queries or concerns about those procedures, we will raise them and we will pursue them and of course, as documents are disclosed and gaps identified, we will seek further documents.

I should also observe that the Inquiry’s already taken steps to ensure the preservation of documents. On 20 January, the Secretary to the Inquiry, Mr Ben Connah, wrote to the Director General Propriety and Ethics of the Cabinet Office to request the retention of records across the entirety of the Government. On 8 February, the Director General replied setting out the steps that had been taken to ensure records relevant to the Inquiry were being retained across the whole of Government.

There are also provisions in section 35 of the Inquiries Act which make it an offence if any person does anything to alter or distort a relevant document or prevent any relevant document being produced to the Inquiry or intentionally destroys, suppresses or conceals a relevant document.

Lastly on this topic, some Core Participants seek an obligation or they seek from you the provision of a list of undisclosed documents (that is to say, documents which we, the Inquiry, will not be providing to the Core Participants). It is of course a matter for you, and you will reflect on that submission, but we ask rhetorically: to what end? It is for the Inquiry to determine whether proper disclosure is being made, whether further areas are required to be explored, and whether there are more documents required to be produced. The production of a document setting out everything that has not been disclosed would simply require an immense amount of further work to little end.

No final decision has been taken as to which electronic disclosure system will be operated by the Inquiry to provide those documents to Core Participants. We anticipate, my Lady, that disclosure will commence before Christmas.

Experts: again, a topic that has fallen within the scope of the written submissions which have been provided today.

The Inquiry will obviously review and provide a vast amount of national and international research material relating to pandemic preparedness and make that material available.

A significant number of qualified experts and persons with recognised expertise are also likely to be giving evidence at the public hearing as witnesses of fact. However, the Inquiry will also appoint qualified experts in particular fields of expertise as experts to the Inquiry. They will assist the Inquiry, either individually or as part of a group of such persons, by way of written reports and opinions and, where appropriate, the giving of oral evidence at the subsequent public hearing.

They will naturally have the appropriate expertise and experience for the particular instruction, and they will be selected on the grounds of their independence and objectivity.

The identification, however, of suitable experts is not at all straightforward, given the public ventilation by many of them of the areas of expertise in which they practice, the fact that many of them were themselves involved in the events under investigation, and the fact that there is a distinct lack of unanimity on many matters. But we have already compiled a list of provisionally suitable experts for Module 1. Their reports when prepared will naturally be shared with the Core Participants, and they will be published on the Inquiry’s website.

Where there are significant differences of view or emphasis among members of a group, they will be made clear on the face of the reports and of course can be tested during the public hearing.

My Lady, we set out in the note from counsel to the Inquiry a number of specialist topics on which the assistance of expert witnesses will be sought for Module 1. I don’t propose to read them out but they cover such areas as the identification, history and funding of those structures and bodies at Government devolved administration local authority level concerned with risk management, the changes to those structures and bodies, their funding, their resourcing, the identification of international bodies concerned with risk management, and the comparative examination of their performance with our own.

The identification, history and funding of UK public health bodies, their development over time, their readiness and preparation, and also forecasting of epidemic trends and the transmission of diseases.

May I express my gratitude to those Core Participants who have already expressed interest in that topic, and have offered other suitable areas for exploration. We’re particularly grateful to the Department of Health in Northern Ireland that the early assistance in the identification of potential experts.

But, my Lady, the guiding principle must remain that it is for the Inquiry to investigate the appointment of experts, and the final decision of course on who they will be is absolutely a matter for you.

The letters of instruction setting out the parameters of their work and the questions for their consideration will be prepared, and the questions that they will be asked to address will be made available to Core Participants in advance of the reports being finalised so that Core Participants will be provided with an opportunity to provide observations on them.

My Lady, may I then turn to the Listening Exercise, a vital part of your Inquiry. As foreshadowed in the terms of reference that you recommended and which were accepted, the Inquiry is designing and setting up a process by which the experiences of bereaved families and others who have suffered hardship or loss as a result of the pandemic will be submitted and listened to or read, and then analysed and summarised before being provided to the Inquiry teams and the Core Participants for use in the public hearings.

This will allow the Inquiry to understand the experiences of the pandemic from across the whole of the United Kingdom, including those most affected, and those whose voices are not always heard. It will provide an opportunity for people to tell us about their experiences without the formality of giving evidence or attending a public hearing. The process, my Lady, I will reach vastly more people than could ever be accommodated by the giving of witness evidence in a public hearing.

So the Listening Exercise will hear or receive accounts from a broad range of people including the bereaved and those whose health has suffered from the disease, those living with the disability or health problems, the clinically vulnerable and those whose family life, education, jobs and well-being and livelihoods have been significantly affected. Those summaries and the accompanying analysis, not just data and numbers, will be fed into the public hearings as written evidence and inform the Inquiry’s understanding.

My Lady, this is scarcely marginalisation of those who have suffered. The details of the current plans have been set out in a note from Mr Martin Smith, and that will be shortly available on the website. But I need to emphasise that that mass of information needs to be properly assimilated and understood if it is to prove the worth that we expect it to be. It is designed, this process, to take the accounts from tens or possibly hundreds of thousands of people and, bearing in mind the importance to the Inquiry’s architecture of that process, and to ensure it’s robust and easy for anyone who wishes to participate, in the Listening Exercise will take some time to design and test. But the procurement of specialist assistance is under way.

As part of that work, your Inquiry, my Lady, I will start trialling different approaches for the Listening Exercise shortly. That will include later this year an online platform which will invite people to share their experiences and then, later in the winter and in the spring, targeted face-to-face sessions with some selected groups from society. Over time, the trials will develop and increase in scale until the exercise is running at full capacity.

So that process is an integral part of the Inquiry’s process. That evidence will necessarily be anonymised – how could it not be? There will be no need for legal representation for the participation and it’s not intended the Inquiry will fund legal assistance. But the material which comes from that exercise will go to the heart of the Inquiry’s procedures.

Some of the Core Participants have asked perfectly properly some questions about the process. Who will be doing the listening? What qualifications, if any, will the listeners have? What training will they have? How will the experiences be recorded? This is naturally all to be worked out but, my Lady, may I say for the benefit of those listening that a great deal of time, energy and resource is already being devoted to ensuring proper correct answers to those questions are made.

May I then turn to commemoration. Given the scale of the loss and hardship, the Inquiry wishes to provide opportunities for this to be commemorated as part of the Inquiry’s process. So the Inquiry team intends to create a physical installation in its future hearing centre which could be a static or mobile artwork or a more organic piece that grows over time, a book of commemoration or a video wall. It’s also looking at how the Inquiry website can be used for proper commemoration.

My Lady, your team is already working on this to find the right solution, and it has already reached out to the representatives of those most affected to develop a commemoration that is suitable and captures the right feelings and emotions.

Then the sensitive and difficult issue of the evidence of individual deaths and pen portrait evidence. Paragraph B of the terms of reference by which the Inquiry is bound provides that the Inquiry will not consider in detail individual cases of harm or death. That is because, my Lady, the core function of this Inquiry is not to enquire into the direct circumstances of the tragic deaths that occurred, but is instead to examine the pandemic that led to those deaths and the response to the pandemic, in order to ensure that in future death and suffering and harm cannot occur on such a scale again. So it is necessarily an inquiry into high-level decision-making and systemic issues and failures.

Moreover, given the breadth of the Inquiry’s remit and the need to make timely recommendations about the pandemic, the receipt of oral evidence at public hearings about individual’s losses or the circumstances of individual deaths is impracticable. It would also require the most invidious of decisions amongst the hundreds of thousands of deaths who should be called upon to give evidence.

But, as you have said and I emphasise again, that is not to say there will not be evidence from individuals surrounding the circumstances of the deaths of loved ones as part of the later modules in relation to the circumstances leading up to death, the use of Do Not Resuscitate orders you have mentioned, but also there are any number of issues which may be illuminated by the giving of individual evidence but only because it’s relevant to the systemic flaws that we believe may have existed. So evidence relating to the NHS 111 system or the triage system or mortuary arrangements or end-of-life care are all wider issues to which such evidence may well be relevant.

The Inquiry has also received submissions from Bereaved Families for Justice groups asking for extensive pen portrait evidence to be heard. That is to say, statements or other materials such as videos relating to the lives of the persons who have died. My Lady, we recognise the value that this can bring in an inquest or an inquiry performing the role of an inquest, and we acknowledge the heart-felt submissions that have been made as part of that request. But this too is impracticable. It is also not required by the European Convention on Human Rights because of course effective participation is a procedural guarantee which doesn’t prescribe the introduction of any particular forensic material by specific route.

But far more importantly, as it happens, the Listening Exercise that you have ordered to be undertaken will be a far more extensively developed process by which individuals may have their accounts heard and considered.

But lastly in any event, may I say that you have also asked that consideration be given to alternative ways in which individual tragedies can be publicly but briefly recognised in the module hearings there. I will be more on that anon.

So, my Lady, before you hear from the legal representatives of the Core Participants who wish to make oral submissions, may I conclude by saying that there will be a further preliminary hearing for Module 1 early in 2023 in London, on a specific date and venue to be confirmed, and it may be that a third preliminary hearing will be required, but it is simply too early to say.

The public hearing in this module will take place in London in May 2023. It will provisionally last four weeks but, as with every aspect of this hearing process, it will be kept under review. Notice will be given of everything that is required to be so notified. It may not always allow as much time as the Core Participants would like. I’m sorry for that. We will do our best but time is against us. There is a huge amount to be done.

The final point, my Lady, concerns more prosaically the section 40 determinations on the subject of those applications. Some have already been received but more can be expected from the Core Participants who are not amongst the Bereaved Family groups who have not yet made them, may we invite you to ask that those applications be filed but perhaps within 14 days.

My Lady, that concludes my opening remarks.

Lady Hallett: Thank you very much, Mr Keith. I have been asked to take a break for the benefit of the stenographers or transcribers, so I shall return at 11.30. Thank you very much.

(11.14 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Weatherby.

Opening Statement by Mr Weatherby

Mr Weatherby: Good morning.

I represent the Covid Bereaved Families for Justice group which came into being soon after the pandemic struck our shores, and was set up as a campaigning group by those who had lost loved ones to Covid and what they perceived as the lack of preparedness and response to it.

It started as a Facebook group and it currently has more than 6,500 supporters, some 3,225 of whom have signed up as members of the group, which simply means that they have a greater involvement as part of it.

The membership is spread across England, Scotland, Wales and Northern Ireland, and the group is very much a UK-wide one. It’s administratively organised as a limited company with directors who are all bereaved family members. Broudie Jackson Canter are instructed for the Covid Bereaved Families for Justice group, and Elkan Abrahamson is the recognised legal representative for the Inquiry, and I lead the central counsel team.

Family members of those who died in the devolved nations and jurisdictions have organised into branches. We have a fully collaborative arrangement with the Northern Ireland families and the Northern Ireland legal team, but there’s a difference of view with some of the families in Scotland and Wales which the group and the families are currently trying to resolve. It appears that there may be the emergence of some autonomous groups as well.

The Covid Bereaved Families for Justice group campaigned for this Inquiry and for devolved inquiries right from its inception. For a long time the Government resisted but eventually, as Mr Keith has already said, in May of last year the former Prime Minister announced that there would be a statutory inquiry. He did so at a time that the families, through the Covid Bereaved Families for Justice had indicated that they were to pursue judicial review proceedings if he did not.

This is already public knowledge, but I make it clear now to demonstrate just how much the families want this process to succeed and their intention to participate effectively within it.

From the announcement in May of last year, there was then a further delay of eight months in appointing you as Chair, and more delay in providing draft terms of reference and then in formally setting up the Inquiry in June of this year.

The resistance in acceding to an inquiry in the first place and the subsequent delays have caused substantial frustration to the families and their wish to expedite the Inquiry in order to try to prevent future deaths, in particular by the timely recommendations that may follow from the modules that you have announced.

However, within the period from when you were appointed, the families recognise that you instituted the consultation on the terms of reference, indeed, the very same day the draft was provided to you by the Prime Minister. Your counsel has already noted that the consultation involved face-to-face meetings with the bereaved in, I think, 11 locations. But what is perhaps also worth noting is that those meetings were facilitated by the Covid Bereaved Families for Justice group and, indeed, I think all of the families that you met were part of the group at that time.

It’s clear from the recommendations made to the Prime Minister that you took account of many of the views expressed to you from the bereaved directly and, indeed, from submissions made on behalf of the group in writing at that time which followed those consultations.

Again, I mention all of this as it demonstrates that the Inquiry well understood from the outset the importance of the bereaved and their effective participation in the process. They are of course by no means the only persons or groups with a keen interest in this process and I readily acknowledge that. However, they are front and central to it.

Again, the consultation indicates the clear commitment of the group and the families to collaborate in ensuring the Inquiry reaches its goals.

The importance of hearing directly first-hand from the bereaved is a theme, of course, I will return to in due course.

However, as you know from our written submissions and prefaced by Mr Keith helpfully this morning, we have raised concerns about the engagement of the Inquiry with the Covid Bereaved Families for Justice team since the consultation. We’ve attempted to engage in writing in submissions on 1 April regarding process and, in particular, regarding the evidence of the bereaved themselves on 30 June, and through requests for information about the intentions of the Inquiry regarding, for example, a central matter of importance at the moment to the families the Listening Exercise.

Likewise, the provisional scope of Module 1 was handed down without any real discussion about what it might include. Now, of course we recognise we can and we will make submissions about both issues today, but our collective experience as set out in the written submissions is that much more can be achieved by dialogue, a two-way street between the teams prior to positions hardening, documents being published, and decisions being set out by the Inquiry in writing.

There has been reference by Mr Keith this morning to the fact that has been extensive contact between the teams; there most certainly has. I do not wish to be misunderstood here, and I do not suggest that we have a poor relationship with your team; we don’t. We want to make it work.

As far as my recollection is concerned, we’ve had four meetings with your team. Mr Keith has indicated there’s a willingness to discuss what we raise. With respect, that is an identification of the point I make. We seek a two-way street. We seek the Inquiry to come to us as well as us coming to the Inquiry to discuss important matters which either directly engage the bereaved or which the bereaved have a central position in trying to assist the Inquiry, for example, the scope of the modules and what should be included.

That does, with the greatest of respect, identify the problem that this idea of dialogue has to come from both sides and to some degree that is what’s missing at the moment.

I’ve explained the position of the group in some detail this morning, mindful that the wider world and media are watching, to emphasise that we do not want to be some kind of official opposition within this Inquiry; quite the opposite. Neither do we seek special treatment; we don’t. We have made it persistently clear that any dialogue that is had with us we expect will be had with all of the other Core Participants and indeed others. That, we perceive, is the role of independent counsel and independent solicitors instructed for the Inquiry.

The better dialogue we seek should be undertaken across the board. I will undertake from our side to do everything possible to make that work. The families have no plan B, and most certainly neither do I, and I hope this particular submission is received in the spirit within which it is made.

One further point before turning to the agenda items. We note that the PM has still to nominate the panel members who were promised to assist you in the Inquiry. We made submissions about that issue many months ago, and how it’s an opportunity to enhance the decision-making process by expanding the range of life experience and the diversity of those right at the centre of it. We obviously recognise this is a matter for the Prime Minister, but it’s a matter directly affecting the Inquiry and its progress. So we would hope that you would join with us in asking the PM to resolve that matter that was promised some ten months ago.

The agenda. I’m only going to address the matters which we want to make submissions on, so if I miss something it’s because we don’t have anything to say at this point.

In respect of Module 1, we respectfully commend the fact that preparedness this starting point for the Inquiry. That was very much our position too from the outset and it’s very much the logical place to start and, indeed, more than that, it may be one of the key areas where the Inquiry can make a real difference and relatively quickly through recommendations.

We do understand that the scope that was published was provisional and a first iteration, but we set out in paragraph 8 and following in our written submissions three particular concerns which we do so to assist the Inquiry, the first of which is the treatment of devolved issues within Module 1; the second is the disproportionate effect of the pandemic on black and brown communities, other ethnic minority communities, and other sections of our communities who are otherwise more vulnerable because of personal characteristics; and, thirdly, the social care and care home sector and places of detention.

It may be on this subject that none of our submissions on these issues are too controversial but, before I make them, this is again rolling back an example of perhaps the way that dialogue could enhance the process and, as we move forward, if the Inquiry team could discuss with Core Participants the scope of particular modules, perhaps with lists of issues provisional list of issues, draft lists of issues, then the scope documents announced by the Inquiry would be fuller and all of us would be actually engaged in that process. Then the scope for further submissions would be limited to matters which are controversial or not agreed or, perhaps, arise at a later point.

Dealing with the three issues briefly, with respect to devolved issues, we don’t understand why a different approach is being taken in Module 1 as cared with Module 2. It appears to us that only through dealing with devolved matters in a dedicated manner can the Inquiry ensure it covers each devolved nation or jurisdiction fully, and recognise that each is unique, which we perceive as the approach taken in Module 2. Only through undertaking the analysis in that way can the Inquiry be sure of then determining how the devolved structure’s provisions decisions on preparedness fitted together with the overall UK structures, provisions, decisions or, indeed, that it did not.

I know my learned friend from the Northern Ireland team, and no doubt the others with respect to Scotland and Wales, will also make submissions on this point, but we simply flag at this point that we raise an issue about understanding how the devolved issues in relation to preparedness will work and the current thinking on Module 1, and request some clarification about that.

As you will recall, the general issues of discrimination and the disparity of effect of the pandemic on certain black and brown communities and other minority ethnic communities was raised persistently during the terms of reference consultation phase by families, and so too the position of other vulnerable sections of the community, the elderly, those with mental health issues, people living with autism or developmental disorders, those with clinical vulnerability, those with physical disabilities and those in detention.

Following those concerns, you made recommendations as to the prominence within the terms of reference with which those issues should be treated, yet they are not apparent within the provisional scope for Module 1 and, with respect, we think they ought to be.

Proper preparedness should have fully included these considerations, and the Inquiry should, in our respectful submission, investigate why they apparently did not or did not do to a sufficient degree. Pandemics are occasionally said to be indiscriminate but that is of course not right. Age, gender, race, disability, co-morbidities are all obvious potential factors, so too are discrimination disadvantage, poverty and the need for people to remain in post as key workers or the existence of the gig economy. All of these are relevant and ought to have been considered in terms of preparedness.

Those who were responsible for preparedness should have taken clear account of discrimination and the differences across communities, the fact that public health and inequality and social deprivation are linked, and the fact that many different sections of the communities required different provision to protect them and, as with the terms of reference, we submit that this should be made clearer within the scope of Module 1.

Further, I’ll come back to these very briefly later, but at the moment we suggest, propose, submit that issues of disproportionate effect and discrimination and their relation to preparedness is likely to be an area where you will be assisted by expert evidence, and that’s a matter that we intend to address you more fully on in due course.

The third point I can put very quickly. The provisional scope makes reference to public health services and to economic planning but not to social care or care homes or, indeed, places of detention and, again, we hope that can be made explicit also. But again I make the general point that it would be helpful if we could have a dialogue about scope before it’s set out in public.

Rule 9 and position statements – and I’ll deal with these submissions together, if I may. At paragraph 13 of the written submissions, we made reference to the efforts which the Inquiry has taken to date to gather evidence as set out in the counsel’s note for this hearing but very fully by Mr Keith and very helpfully by Mr Keith earlier today.

We made three points about this. Firstly, all material providers should be asked to provide all potentially relevant material so that the Inquiry can determine – the Inquiry – what is actually relevant to its investigations in line with its terms of reference, and the providers should be reminded of their duty of candour. This may seem a trite and obvious point but, in order for public confidence to be maintained, it must be made clear that providers, in particular public authorities, must take a wide approach and not tailor disclosure to their own ends or sit on their hands and only provide material which has been expressly requested.

I note the efforts to address this in the detailed Rule 9s we’re told have been made but, in our submission, history shows that this is something which needs to be made express clear and in terms.

Secondly, if Core Participants are to effectively participate in evidence-gathering, particularly in an inquiry as wide-ranging as this and one where we respectfully commend your approach in driving it forward quickly, we submit that Rule 9 requests should be disclosed in order that we can see not just a summary, a helpful summary, but not just a summary, where we can see what has been requested, and it will allow us to suggest other avenues or other material that we may just have spotted which your team may not, however diligent and effective they are.

We don’t actually think this is a radical submission; it’s transparent. It allows all of us to collaborate with the Inquiry in progressing its work expeditiously, and it builds confidence between us. The disclosure would be subject to the undertakings so we can’t see a difficulty in taking this approach. We have flagged this up with your team in advance which I think may be why Mr Keith, again helpfully, addressed it. But we don’t think – well, first of all, we do think that in the past there have been occasions where Rule 9s have been disclosed. We can’t think of any legal reason or any practical reason why they shouldn’t be disclosed and, therefore, we ask you to consider that submission and positively do it.

The third point we have raised is in respect of what have become known as position statements. Now, position statements can be cast as Rule 9s or otherwise, and we don’t in fact think it matters, but we submit that the Inquiry should request from State and organisational Core Participants and other providers, corporate or institutional statements signed off at the highest level setting that organisation’s narrative of events so far as it was involved or so far as it observed the conduct of the others.

Now, I pause at this point to address a matter that was addressed this morning about slowing the process down or being adversarial. That is not what we are submitting here. We absolutely think the opposite is the case with position statements. We do not think that position statements with public authorities, in particular, particularly in an inquiry of this nature, needs to wait until there is significant disclosure.

A position statement is not asking Core Participants to do, with respect, your job; it’s asking them to state what they did. It’s effectively putting a narrative burden, an evidential burden perhaps in more legal terms, on to them rather than you and your team. So, in terms of slowing the process down, absolutely the opposite, because it would put an onus on the Core Participant to identify everything about their own conduct, their own narrative, rather than simply others having to search within their domain for it.

In terms of being adversarial, we respectfully ask: how is asking a Core Participant to assist the Inquiry by saying what did or did not happen adversarial? Again we say it’s part of a proper institutional inquisitorial approach.

The statements that we seek, the position statements we seek, would include the responsibilities, the legal and regulatory framework within which the organisation works, what did and didn’t happen so far as relevant to the terms of reference in the particular module, and what failures and what good practice it can identify to assist the process.

It should identify relevant material and the issues on the terms of reference to which it applies. In an inquiry as huge as this one, this approach would be key, in our submission, to cutting to the centre of the issues, and it avoids the Inquiry having to identify the haystacks, never mind the needles that might be lying within them. This has been an approach taken by inquiry Chairs recently as we’ve set out in writing from paragraph 21 onwards. The general approach was extensively looked by the working group in the Law Reform Group Justice, report of which expressly endorsed the approach of using position statements and, importantly for my submission certainly, is that three of your fellow senior judges who have very considerable experience in this area was central to that justice process and that justice report: Sir Robert Owen who chaired the Litvinenko Inquiry; Sir John Goldring, the coroner in Hillsborough; and Sir Peter Thornton, who was a previous chief coroner.

Given the number of issues, the number of potential material providers putting there is initial burden on them to identify roles, issues, narrative, what may have gone wrong, is, in our submission, not only the right approach, but it’s a common-sense starting approach and it should expedite the Inquiry’s work. It’s an approach which has been deployed. It was deployed with great effect in the Manchester Arena Inquiry and to some effect in the Grenfell Tower Inquiry.

From the gathering of evidence, can I now briefly turn to the disclosure of the material to Core Participants. Paragraph 49 of the Counsel to the Inquiry’s note there is reference to:

“Focused and proportionate disclosure to Core Participants to allow them to effectively participate in the hearings.”

Some discussion about that was had earlier. I say candidly I don’t know what that means. I don’t know what test is set out there at all. What is it? Who would apply it? Practically, we assume, we hope, the material will come into the Inquiry, undergo a potential relevance test and no doubt a screening for material which should properly be taken out (personal details and such-like) and then disclosed on an ongoing basis in tranches. Rhetorically, how is the solicitor or counsel within the Inquiry team undertaking this task day-to-day, or more likely a small army of solicitors and counsel, given the volume here, how are they, how are the individuals there to do this without a clearly set-out test?

Given that there will be electronic disclosure, there’s no greater burden in adopting the approach taken in other inquiries and inquests and that of disclosing all potentially relevant material, subject to narrow exceptions.

I won’t repeat them, but we set out five reasons why this is the appropriate approach from paragraphs 29 of our written submissions. But what they amount to in summary is proper transparency, consistency of approach across the material, and facilitating the effective participation of Core Participants.

If Core Participants are only given a part of the evidence, how is it that they can properly engage within the Inquiry?

Now, we do obviously understand that there will be a substantial amount of material generated. We do understand that the Inquiry must apply a proper relevance test here. However, the approach currently indicated appears to reduce the disclosure process to an arbitrary one, without any consistency or proper standard or test.

Experts. We note that the indication that you will consider suggestions as to experts on the questions they are asked to address will be made available prior to finalisation of reports but, again, rolling back to dialogue, it will be helpful if we could have more of a two-way street as the Inquiry progresses on this point. Effective participation again means Core Participants, all of us, collaborating with the Inquiry in searching for evidence and answers. It appears to us and w,e, perceive it is the approach of the Inquiry that there will be the need for significant areas of expert evidence, and we agree with that.

We also agree with submissions made by other Core Participants that in an inquiry like this it will be impossible – not just difficult but impossible – to find experts who have not already expressed views. I think those are the submissions of Mr Beer, in particular, for NHS England. There is the need for a balancing of groups of experts, which I think he’s putting forward and with which we most certainly agree, and I will endeavour to assist in the identification of relevant experts.

The Listening Exercise. Of course this is the area of most current concern to family members, as you know. In earlier submissions and those for today, we’ve identified that there are three key areas of evidence which the bereaved can and should provide to the Inquiry, commemorative evidence regarding their lost loved ones, evidence of circumstance of death, and evidence regarding the effect of loss on the bereaved themselves. There are, of course, other categories to which particular family members can contribute, but these seem to be the main three strands and we made written submissions in April and June regarding those.

We haven’t had a substantive response or again any real discussion or dialogue about the submissions. The Listening Project or now the Listening Exercise appears to be passed as a parallel process. The bereaved learned from the Guardian about a tender process. How accurate that was I’ll leave others to say. But nevertheless the families were concerned to learn from the media about a tender process which apparently was directed at companies from a Government-approved list which may have played a role; some of them have played a role in Government messaging regarding the pandemic itself. Whether or not that’s an entirely accurate picture put across, it has caused real concern with the families.

If it is that the Inquiry is seeking a strategy, a plan, as to how to take the evidence of the bereaved and of course others, then within its own team it has quite a cohort of very experienced lawyers who have engaged in these processes before. So do we, and we absolutely want to collaborate with your team in coming up with a process that actually works and has the confidence and buy-in of the bereaved and allows the Inquiry to take this very important evidence in the best way possible.

But, if the Listening Exercise is to be a process outside of the Inquiry to which the bereaved and anybody else affected provides information about their experiences or, indeed, anything that they wish to contribute, that is a matter of some concern. The assertions at an early stage of this, before the process has even properly formed, so there will be no resourcing for the bereaved to receive help, assistance or advice from their representatives, is equally troubling given the experience from a wide range of inquiries and inquests about the necessity for it.

So far as I’m aware, there’s been no contact with Inquest, the charity, who for 40 years has been the central charity involved in dealing with the bereaved and their needs within such processes. May I just in passing declare an interest, because I’m actually a trustee of Inquest. But it would be essential, in my submission, to involve organisations such as Inquest, with their wealth of expertise in this area, to play a role in the formulation of any such process.

We have asked but we’ve not been informed as to who would take the information from family members or others and what their training or expertise would be. The information supplied, we’re told, will be analysed and a report will be provided, then considered by the Inquiry. Again we’ve asked but not been told who it is that would analyse such material or how or what training or expertise they would have, or, indeed, how the Inquiry would consider the report, or to what end or, indeed, how the Inquiry would quality control the taking or the analysis of such material.

The only guidance that we’ve had is that we might like to look at the process of the Truth Project in IICSA, the Independent Inquiry into Child Sexual Abuse. We note that Inquiry was primarily about institutional child abuse, not huge loss of life, so quite different. Anecdotally, we note that many who were involved, certainly professionally, were critical of that process, and it’s not clear to us, looking in at that process how the product of it was considered or whether it influenced the Inquiry itself. We’re not aware of any post Truth Project analysis of how or whether it worked.

We’re not aware of any other case where this approach has been taken. There’s reference in the Solicitor to the Inquiry note of 13 September that a research analyst company is proposed to be instructed to do this work. We’re not aware of this as a discipline or, indeed, of expertise or experience which would allow an outsourced company to deal with this.

Our submissions, on the other hand, refer to other inquests and other inquiries into mass fatalities. We’re not suggesting they are the same. The way in which the evidence of the bereaved has been considered in the past and to the current guidance of the Chief Coroner on pen portraits. We also made it quite clear and repeatedly so that we did understand that every process is different.

We understood that this Inquiry will not look at the circumstances of each death individually. How could it? We make clear that we took notice that the extent of loss of life to the pandemic means that a proportionate approach has to be taken here, and we set out preliminary proposals as to how that might be done with all that in mind.

Those submissions are being characterised as heart-felt and that they call for “extensive hearing of pen portraits”. The reality is that the submissions are based on what has worked in the past, but they are crafted to provide starting proposals, proportionate proposals which would properly engage and value the bereaved, but without having any disproportionate effect on progress or on cost for the Inquiry.

Now, of course, if those submissions are to be given further consideration, we would absolutely wish to do so, and we would engage fully with that, and we are happy to discuss as far as anybody wishes us to what we mean by the proportionate approach, because we are committed to the approach that you’ve taken into driving the Inquiry forward.

Mr Keith referred to (b) in the terms of reference to “listen to and consider carefully the experiences of bereaved families and others who has suffered hardship or loss as a result of the pandemic.” The Listening Exercise proposal, as cast up to now, in our respectful submission, does not do this. It outsources examination of the experiences and the evidence of the bereaved and of their loss, and it places them in a parallel ad hoc process outside of the statutory inquiry framework and it does, with respect, marginalise the bereaved and their voices.

I’m not going to repeat the points we’ve made earlier about how it should be done.

But, firstly, the Inquiry should facilitate the gathering of commemorative evidence, in our submission, from those who wish to do so. It should explore with us their representatives, how this can be done in a proportionate and fair way, and that the Inquiry process should include a proportionate amount of this evidence within it, not an extensive and disproportionate section which diverts the Inquiry.

A clear recognition that the Inquiry wants to hear and recognise at first-hand the loss and the experience of the bereaved. Hearing commemorative evidence at first-hand has no substitute. It cannot be provided through a parallel process. It can and should be done in a dignified yet proportionate fashion.

Moving on, in respect of the investigation of individual deaths, we’ve been assisted this morning by some further clarification, which we certainly hadn’t picked up before. We were going to ask you for a clear signal that a proportionate amount of witness evidence of those who can give direct evidence of circumstances of death would be called for key issues such as the 111 service and DNR. We are reassured by what has been said this morning that that is in fact your intention and that you will be hearing first-hand witness evidence of what actually happened to assist you in determining the terms of reference on those points.

Thirdly and briefly, we think that a similar approach, a proportionate amount of evidence should be taken to give the experiences of the loss on the bereaved themselves.

Finally, moving on and briefly to future hearings, I’ve already emphasised the families’ frustrations at the time to get to this point and the imperative that this wide-ranging Inquiry is kept within a proper timescale, a point we have repeatedly made and which we perceive is entirely in tune with your own approach. It should aim to take the shortest possible time but be as long as is necessary.

We respectfully agree that the Inquiry has set a realistic and proper start date for the hearings of Module 1, spring next year. However, we do flag at this stage our surprise that it’s thought that the whole of preparedness across the United Kingdom and within the devolved nations and jurisdictions can be dealt with properly within four weeks. Again, the first we heard of that was in CTI’s note. We’re not aware of how that estimate has been reached. All we ask at this stage is that the Inquiry revisits it and revisits it in time as more is known about the progress of Module 1.

Finally this: I reiterate the bereaved families recognise the work that has been undertaken to date. They campaigned hard for a full independent statutory inquiry and are fully invested in its success, and what they really seek is an indication that they will actually be placed front and central to the process, as you have promised, including through effective participation in the process, and that you will take due account of the submissions we made this morning.

Lady Hallett: Thank you, Mr Weatherby. I’m very grateful to the Bereaved Family organisations for their help in organising the consultation on the terms of reference and for introducing me to so many members of bereaved families. It was extraordinarily helpful and, as we have heard today, fed into my recommendations on the terms of reference.

I welcome also your offer of a collaborative approach, and I hope that always remains the case because we simply can’t get through this Inquiry, given the complexities, without that kind of collaboration.

I will obviously reflect on all the submissions that you’ve made this morning, but I just want to say a couple of things to put the record straight, because I know how distressed people already traumatised by grief can be if they see something perhaps misunderstood in reports.

There is absolutely no question that the bereaved will be marginalised, and I really don’t ever want to hear that expression again because, as I hope, those families to whom I spoke understand, and I hope your members will understand, I am determined that those who have suffered will be at the heart of this Inquiry. So any plans that we are developing as far as the Listening Exercise and commemoration are concerned will ensure that they are not marginalised.

As you know the intention of the Listening Exercise is, far from marginalising the bereaved, it is to extend the number of people who suffered and the number of bereaved who have suffered to many, many thousands more than we could do in the ordinary classic way of a formal hearing.

But the reason you haven’t had any answers to your questions is that the plans are in an early stage of development. You know, Mr Weatherby, how hard everyone’s been working to try and get this Inquiry underway and, as soon as we have sensible suggestions, we will of course make sure that your lay clients are properly consulted, and of course all the others, the other Core Participants and people who have suffered in other ways.

So I hope that you and those whom you represent are reassured by those comments that the bereaved will remain that heart of this Inquiry, as all the others who have suffered will do so too. So thank you for your submissions.

Right, who’s next? Mr Lavery.

Mr Lavery: My Lady, thank you. Just, for the record, the name is Lavery.

Lady Hallett: I’m so sorry, thank you. Please, if I make that mistake again, please correct me.

Opening Statement by Mr Lavery

Mr Lavery: I Won’t hesitate to.

Thank you for giving us the opportunity to address you here in person, and it is great to see so many people here in person.

I represent the Northern Ireland Covid-19 Bereaved Families for Justice, and I’m Ronan Lavery. I’m here with Mr Conan Fegan who is another barrister, and Mr McGowan, and Enda McGarrity and Conal McGarrity are here as well, and we represent our families in Northern Ireland and they will be heartened to hear what you just said, my Lady, in terms of them being at the heart of participation in this Inquiry.

We are here to represent them in London. Northern Ireland is a place geographically removed from here and we’re here to represent them as this Inquiry proceeds.

We have prepared a joint submission to the Inquiry, and I hope that you will see that as a way that we want to collaborate responsibly with the other families from the other jurisdictions, and I endorse entirely what Mr Weatherby was saying and I’m not going to repeat that in that manner.

As I say, we’re heartened to hear some of what Mr Keith said today and what you are saying as well, and that the door will be open and, just as we’re collaborating together, we want to collaborate as well with the Inquiry going forward.

The families I represent were very impressed with the Listening Exercise which did happen in Belfast and were struck with your humanity, my Lady, and it is our wish that that humanity continues throughout this process. It sounds from what has been said today that it will because, although as Mr Keith pointed out we’re dealing here with high-level decision-making, a group of lawyers examining it, scrutinising it, this is of course about human beings and humanity, and that won’t be lost on you, my Lady.

When one is looking at this from a Northern Irish perspective, there are decisions that were made at a UK-wide level that impact on Northern Ireland, and we will collaborate with the other nations on those issues, but there are also decisions that were made in Northern Ireland.

Northern Ireland’s a unique place, not just geographically, as I’ve explained and as set out in our submissions as well, there are some features that are unique to Northern Ireland. So we want to impress upon you the importance of dealing with these issues in Module 1 as well, and they seem to have been looked at in a more separate and different way in Module 2 and simply, I suppose, we want to impress upon the Inquiry the importance of this for our families.

There is no Northern Ireland Inquiry, and so this is their opportunity to shape the outcome of this Inquiry in a collaborative way. Some of the unique features or Northern Ireland are – this may come as a surprise to many people – we don’t actually have an NHS. We have a universal healthcare system which is branded in different ways. We have an amalgamated health and social care system, again different from the England and Wales model. We have a unique constitutional arrangement in terms of decision-making at a devolved level. There is mandatory coalition and hurdles that have to be surmounted before any kind of decision is made. For instance, if they are significant or controversial, then they have to be referred to the executive. So that is a unique feature.

Of course – and I’m back to geography – north and south, the island as one epidemiological unit is something that is of course unique and there was, I understand, a memorandum of understanding between the jurisdictions north and south, and the impact of that the effectiveness of it is something that we would invite the Inquiry to look at.

I’m not going to say an awful lot more, my Lady. Mr Weatherby has dealt with the issues and as I say that’s our collaborative effort.

On the issue of disclosure, we are keen to hit the ground running and, if there we’re looking at a hearing in May, we want to look at materials as quickly as possible and make sure that we’re prepared for that and that we can deal with this as expeditiously as possible and that there won’t be delays in the scheduling.

So just lastly then our families’ concern is that we have a real role in this Inquiry, that the unique Northern Irish situation is dealt with and that it is not somehow dealt with as a footnote to the Inquiry, and that’s the phrase that they have used. So we hope, and it’s our aim as their legal team to make sure that that doesn’t happen.

Lady Hallett: Thank you very much, Mr Lavery. Thank you for your comments about my trip to Belfast. I think as you will recall – I mean, I fail to believe anybody could be not moved by what we heard from the families on that occasion and, indeed, throughout the UK. So thank you very much for your comments and for your offer of collaborative working. I really do appreciate it from all of you.

As far as many of the unique aspects of Northern Ireland are concerned, if I didn’t know about some of them before, I certainly do now, and I can promise the people of Northern Ireland that, for as long as I am the only Inquiry into Northern Ireland, we will ensure that all the aspects that your lay clients’ wish to be considered and, indeed, the public in Northern Ireland wish to be considered, if they are of course what we in the end determine are relevant, then they will be. So thank you very much for your comments.

Mr Lavery: Thank you, my Lady.

Lady Hallett: Ms Mitchell.

Opening Statement by Ms Mitchell

Ms Mitchell: My Lady, over the last two years the Scottish Covid-19 Bereaved Families for Justice group have campaigned for a robust, independent and transparent public inquiry into the handling of the pandemic.

The Scottish families welcome the approach of my Lady and the Inquiry in assuring them that their voices will be heard at the UK inquiry and will be heartened this morning to hear the comments that they will be at the heart of this Inquiry.

Today is the start of the process, and the grieving families in Scotland hope that this public Inquiry will be both an effective and credible mechanism to ensure what happened to them will not happen again. We hope to assist the Inquiry to ensure this happens.

Senior Counsel to the Inquiry has set out very broadly the matters to be explored in Module 1. Having spoken to him and the solicitor to the Inquiry, we appreciate that, given the amount of information that’s been processed by the Inquiry at present, no greater specification is possible.

Given this situation, combined with a lack of disclosure to us at present, it’s difficult to know whether all the issues we wish covered will, in fact, be in there. In order to assist the Inquiry, we look forward to disclosure commencing and, where appropriate and possible, a list of issues and/or questions at the earliest opportunity in order that we can assist by flagging up anything that we see as omissions or suggest any additional issues to be dealt with.

We appreciate Senior Counsel to the Inquiry’s comments this morning that he will approach such suggestions from the Core Participants with an open, indeed eager, frame of mind. We’re keen to start working on disclosure, and we hope that, before the further preliminary hearing in early 2023, we’ll be in a position to help the Inquiry in this regard.

I now turn to address four specific issues.

1. The Listening Exercise. As no doubt appreciated by the Inquiry, the ability for individuals to explain how Covid affected them and their loved ones personally is something which is hugely important to the people that we represent in Scotland. My Lady, we welcome the comments in your opening remarks. With regard to the Listening Exercise for those that we represent, it is a crucial part of the Inquiry process and, again, indeed they will be heartened to find out my Lady’s comments on that this morning.

Once the information collected in the exercise is analysed and presented in a report, it will bring considerable value to this Inquiry. We have had constructive meetings with the Inquiry legal team in respect of the Listening Exercise. We do understand that at present there are still a number of matters to be considered and have made some representations already on our views. We look forward to continued discussion in that regard.

We are keen to ensure that there are as many ways as possible to facilitate listening by speaking to someone, providing written response, using technology, or really by whatever means the Inquiry can think of that would be appropriate, and also we are keen to ensure that the people carrying out the process are suitable for that role.

2. Watching proceedings.

It is important to those that we represent to have the opportunity to watch the proceedings, and we note that, thanks to the benefits of technology, proceedings will be placed online with a short time delay. This doesn’t, however, assist those who don’t have computers, don’t have access to Wi-fi, are not tech savvy or simply don’t have the ability to watch online. We would ask that the Inquiry gives consideration to finding places, if you like listening rooms, which could be made available in Scotland so that, with the use of technology, the work of the Inquiry in the hearings could be viewed by people wishing to attend those places. We would ask that consideration be given to this being put in place for the next hearing.

Number(3) The Scottish Inquiry.

The Inquiry has already stated its aim to work alongside the Scottish Inquiry to assure that there is as little duplication of work as possible. We’re glad this morning to hear the memorandum of understanding has been drawn up, and we hope that that will minimise any problems that will arise.

There will however no doubt be issues on which there are queries as to whether or not the matter is properly an issue for the UK Inquiry or Scottish Inquiry. We would ask that we can assist the Inquiry in providing our views, if and when those matters arise.

On a practical note, we would also ask that the Inquiries work together insofar as is possible not to sit at the same time, as those we represent have a direct interest in both inquiries.

4. Memorialisation.

We agree and support the idea of a memorial as mentioned by Senior Counsel to the Inquiry. Under consideration, as we understand it, at present is a commemorative memorial in the future hearing centre. We understand that the hearing centre will be in London, at least for the first module. Particularly in the present financial climate, travelling to London to view a memorial would simply neither be practical nor viable for many people in Scotland. We welcome the comments this morning by senior counsel that consideration is being given to the memorial being mobile, and we would ask that any memorial which is decided upon is capable of being moved so that, when the Inquiry visits Scotland and elsewhere, people have an opportunity to see it.

My Lady, these are the submissions on behalf of the Scottish Covid-19 Bereaved Families for Justice group.

Lady Hallett: Thank you very much indeed, Ms Mitchell. Your constructive support is absolutely very welcome and very much appreciated. So thank you very much. The idea of listening rooms is an excellent suggestion and we’ll certainly look into whether it’s going to be possible. I know a number of people who fall into the category that you have considered who would welcome that kind of opportunity for a listening room. So thank you for that idea, and I can undertake that we will give you as much notice as possible whenever we can.

I’m sorry that people didn’t have that much notice of today’s hearing and the list of issues, but we will give you as much notice as we can as Mr Keith has indicated. So thank you very much indeed.

Ms Mitchell: I’m obliged. That’s helpful, my Lady.

Lady Hallett: Ms Heaven, isn’t it?

Ms Heaven: Thank you, my Lady. I represent the Covid-19 Bereaved Families for Justice Cyrmu, a group dedicated solely to campaigning for robust, independent and transparent scrutiny into the preparation for and response to the pandemic in Wales.

The group has worked tirelessly to give a voice to those bereaved by Covid-19 in Wales, and they are heartened to hear today that the Welsh voices will be at the heart of this Inquiry.

The Covid-19 Bereaved Families for Justice Cyrmu wish to thank the Chair for designating them as a Core Participant in the Module 1 hearings of this public Inquiry, and for the chair’s recognition that they are best placed to assist this public Inquiry to achieve its aims by representing the collective interests of a broad spectrum of those bereaved by Covid-19 in Wales in relation to Module 1.

The Covid-19 Bereaved Families for Justice Cyrmu also welcome the Chair’s very clear commitment to looking at the actions of the devolved administrations. However, as the Chair will be aware, there are still concerns in Wales, and indeed in all of the other devolved administrations, that the preliminary scope of Module 1 does not set out in any detail the issues specific to Wales that ought to be investigated by this public Inquiry.

It is vitally important that the people of Wales can have full confidence that this public Inquiry will scrutinise decision-making in Wales in respect to the pandemic. The group does welcome the chair’s indication that this public Inquiry will come and hear evidence in Wales for certain modules.

Wales is a separate country and, although Wales receives funding from the United Kingdom Government, responsibility for health and social care is devolved to the Welsh Government. Wales has its own healthcare system and NHS Wales is comprised of local health boards and NHS Trusts. There is a Public Health Wales and relevant offices and agencies such as the Office of the Chief Medical Officer and Care Inspectorate are specific to Wales.

Key decisions made in Wales in relation to the Covid-19 pandemic were largely separate to and quite often distinct from those taken by the UK Government. However, Wales does have strong connections with the UK Government and the other devolved governments, and so it will be necessary in Module 1 to unravel the links between these governments and the extent to which they influenced the Welsh Government, whether for good or for bad.

In relation to preparedness, whilst the UK influenza pandemic preparedness strategy 2011 concerned a UK-wide strategic approach to planning for and responding to the demands of an influenza pandemic, the Cabinet Office Guidance of November 2017 on pandemic flu planning made absolutely clear that devolved administrations are responsible for the major areas of pandemic influenza planning and response in their respective countries.

It also made clear that it was the Wales resilience forum chaired by the First Minister for Wales that provides the mechanism for a national multi-agency overview of pandemic preparedness in Wales. There can therefore be no doubt that responsibility for pandemic planning in Wales was largely, if not entirely, in the hands of the Welsh Government.

In relation to Module 1, the Covid-19 Bereaved Families for Justice Cyrmu just wish to highlight a few particular areas of concern that they have that this public Inquiry must scrutinise in relation to Wales in Module 1.

These include whether the level of funding provided to Wales by the UK Government had an impact on the planning, and preparedness in Wales for the pandemic, and the political relations between Wales and the UK Government.

Co-ordination between the UK Government and all the devolved governments and the variation in standards in the approach to preparedness for a pandemic.

The preparedness in NHS Wales in the Welsh hospital estate and in Welsh care homes in respect of infection control measures including segregation, resourcing PPE, stockpiling and distribution, and whether there was adequate or, indeed, any planning in relation to post death procedures to protect dignity and to support the Welsh bereaved in the event of a pandemic.

So the Covid-19 Bereaved Families for Justice Cyrmu will be making further submissions to the public Inquiry on all the procedural matters raised by Counsel To the Inquiry today and after disclosure has been received. However, the Cyrmu group is also of the view that position statements are going to be essential in understanding in an efficient way what happened in Wales in relation to preparedness.

The Covid-19 Bereaved Families for Justice Cyrmu are committed to working with the Inquiry team to assist in developing the Listening Exercise in Wales, and stand ready to work collaboratively with the Chair in developing the scope of Module 1 in relation to Wales.

Thank you.

Lady Hallett: Thank you very much indeed. I do understand the concerns expressed about the approach to devolved nations and whether the provisional scope has set it out appropriately. So I will very much look into that and I’m very grateful for your helpful submissions. Thank you.

Mr Bermingham?

Opening Statement by Mr Bermingham

Mr Bermingham: Good afternoon, ma’am. I represent the Association of Directors of Public Health, the ADPH.

My client is grateful for the Inquiry’s recognition that the role of Directors of Public Health have taken in preparing for and responding to the pandemic.

Our thoughts are of course with those who have lost their lives and the bereaved. ADPH is committed to this Inquiry and to helping it deliver recommendations to ensure that pandemic response will be better in future. ADPH has filed brief written submissions, and there are a few matters arising from these and from the other submissions that I would like to address now.

First is the question of how we investigate pandemic preparedness. We are unclear if the Inquiry intends to take the high-level approach described by counsel to the Inquiry and look at the paper state of preparedness as at, say, January 2020, or whether in investigating preparedness the Inquiry intends to look at what was revealed about preparedness by events in the early stages of the pandemic when gaps in the planning became apparent.

The example given in our submissions is of Government departments who did not have up-to-date contact details for Directors of Public Health. That seems to us to be a gap in the planning, but it is only when you descend into the early events of the Inquiry that that gap becomes apparent.

Clearly our submissions are that the Inquiry should look into those early weeks of the pandemic but, to be clear, we are not suggesting that in Module 1 in preparedness we go deep into the pandemic and into late events looking at the question of preparedness. What we’re interested in is systemic failures that are revealed by the early events.

Next up is the local government perspective. As the Inquiry will be aware, there has been a trend toward the unification of health and social care in recent years in recent legislation. As a result, local authorities were at the forefront of pandemic response and in pandemic preparation. Their plans, their preparation, are important for understanding how well prepared our society was. In light of that, it’s slightly surprising to see that we only have two organisations here dealing with local government, in the form of my client and the LGA.

It’s my client’s submission that more detail on the local government position is needed and, in that respect, two organisations that would be able to assist the Inquiry significantly are the Association of Directors of Adult Social Services, and the Association of Directors of Children’s Services. Local authorities are at the forefront of service delivery in respect of both children and vulnerable adults, and those organisations will be able to assist on how those aspects of pandemic response were planned for.

In addition, my client suggests that we could look at undertaking some preparedness case studies around individual local authorities, or the Inquiry could make Rule 9 requests of individual local authorities on the question of preparedness.

The local authorities that we choose would need to be selected to be contrasting local authorities, contrasting parts of the country, contrasting areas of affluence and so forth.

The next issue to comment upon is the question of position statements. The association is against filing of witness statements and supports what was said by Mr Keith earlier. Position statements would effectively have us pleading in the Inquiry, and a position statement filed before we’ve had an opportunity to really descend into the documents would be no more than a statement of an organisation’s early impression of its pandemic response, rather than a detailed and thought-out narrative. As such, we don’t think that position statements will help.

That said, ADPH recognises that it is important that this Inquiry understands the role of Directors of Public Health, particularly as it differs across the four countries, and so it suggests filing witness evidence at an early stage to explain that to the Inquiry and to provide the Inquiry with its documents; and then, after that, for the Inquiry to move to the question of Rule 9 requests of the association.

Turning to disclosure, ADPH has great sympathy for what the survivors say about wanting to see all of the paperwork that encourages transparency. It creates an impression of openness and so we don’t oppose that submission in principle. However, in the interests of balance, we do have to comment that this Inquiry is going to acquire a vast amount of paperwork; it will be millions of pages. We’re talking about amounts of paperwork so vast that electronic document management systems, search terms, use of AI to index and audit it, will be required to control it. As such, the Inquiry has to strike a balance and, therefore, the position that we take is one of neutrality on that, but we need to be assured that the Inquiry is giving the relevant stuff and, therefore, there is a place perhaps for identifying the material that has been left out.

On the subjected of disclosure of documents generally, it’s clear that Central Government departments have been asked to preserve documents. I think Mr Keith mentioned January 2021 in respect of that. The question is whether local authorities should also be asked to preserve documents because they will be sitting on vast amounts of material which would also be of relevance to the Inquiry.

The final point for ADPH is one of perception. It’s about openness. It’s vital that this Inquiry carries the survivor community, carries full public confidence, and that’s about a perception of openness. In this information age, the more open the Inquiry appears to be, the better it will be received by the public.

On that basis, when the core participation determinations were made, it was a little surprising to learn that we had become a Core Participant but that we couldn’t communicate that fact and that fact that not going to go up on the Inquiry website until after today. I know that nothing sinister is intended by that. I know that that’s just about information management, but it is one of those things that just created a slight perception that maybe the Inquiry wasn’t being as open as it could be and, dealing with any mis-perceptions around openness, ADPH submits it is extremely important. Unless there’s anything else I can help you with, ma’am.

Lady Hallett: Thank you very much indeed. One of the first things I said to the Inquiry team was that I believe in openness. I mean, the last point hadn’t occurred to me until you made it. So thank you very much, and the other points too, important points, and we’ll reflect upon them. Thank you.

Mr Bermingham: Thank you.

Lady Hallett: Ms Gallagher?

Opening Statement by Ms Gallagher

Ms Gallagher: My Lady, as you know, I act for the Trades Union Congress (the TUC) along with Mr Jacobs, and instructed by Thompsons Solicitors. May we start by saying how grateful we are to be a Core Participant in this vitally important module and, as the TUC has made clear in its engagement prior to the official commencement of this Inquiry and since your opening statement in July, we seek to bring forward the experience and expertise of the TUC members and the TUC member unions, for the benefit of this important Inquiry.

We intend to do that to the extent we can through the life of the Inquiry and, of course, also we wish to protect the interests of our members and member unions. I’m conscious you have detail in the written materials before you about the TUC, but I just want to start by saying something brief for those who are watching us in the room and online about that.

The TUC brings together 5.5 million working people who make up its 48 member unions, from all parts of the UK, from all four countries. Each of those 48 member unions is listed as an annex to the submissions we have given you and, as that list makes clear, my Lady, they span a very wide range of industries profoundly affected by the Covid-19 pandemic, including many front-line roles.

Mr Keith King’s Counsel to the Inquiry referenced in his opening remarks today the vast swathes of human and social activity which were curtailed, halted or impacted by the Covid-19 pandemic and the official response to it and, if you look at the list that he gave and you look at the 48 member unions, you see a very substantial overlap because the remit is breathtakingly broad.

It includes, by way of example only, midwives, workers in food industries, headteachers, teachers, lecturers, those working in adult education, probation, prison and family court staff, workers in social care, manufacturing, nurseries, coalmining, the voluntary sector, aviation and a great many more.

It also includes groups such as freelance artists, journalists, bus drivers, call centre workers, civil servants, a huge range, and to use Mr Keith’s phrase, it’s vast swathes of human and social activity reflected in the TUC’s work.

Critically, my Lady, thousands of people of working age died in the pandemic, many of whom were key workers in high-risk workplaces, in sectors such as health, social care, transport, food processing and textiles, and a great many of whom were TUC members.

Workers from ethnic minorities were particularly hard hit, as you will hear through this Inquiry, with, on the statistics we have available, BME men 57 per cent more likely to be working in jobs with a high mortality rate, BME women 48 per cent more likely to be working in jobs with a higher mortality rate and, indeed, that echoes Mr Weatherby’s submissions a little earlier on behalf of the bereaved families in his group.

Many thousands of TUC members died as a result of the Covid-19 pandemic, tens of thousands continue to suffer the effects of long Covid and pandemic-related workplace injury, and many more are bereaved, many have suffered hardship of loss in a myriad of ways.

I did want to quote what the TUC General Secretary Francis O’Grady said in April of this year in a joint statement released with the Covid Bereaved Families for Justice on Workers’ Memorial Day. That of course was before the Inquiry’s Terms of Reference were finalised. She said:

“We’ll forever be in the debt of the workers who kept the country going during the pandemic: nurses, carers, bus drivers, factory workers and so many more. Far too many were exposed to the virus at work and lost their lives as a consequence. Now the governments owe it to them and to their families to make sure the public Inquiry investigates what should have been done to keep everyone safe at work.”

Since that time of course the Terms of Reference have been finalised and the baton has been passed from the Government to you and your team, my Lady, and echoing those words from the general secretary in April, we say now the Inquiry owes it to them and their families to ensure that the Inquiry investigates what should have been done to keep everyone safe at work and what should be done in future, and we’re very grateful for the clear and robust recognition in your opening statement of July and again in your words today of the vital importance of learning as swiftly as possible if anything could or should have been done to prevent or reduce that suffering and those failures.

We were struck, my Lady, by the fact that, at the outset of today’s hearing, you indicated that there’s one word that sums up the pandemic for so many and that word is: loss.

For the TUC, TUC members and member unions, we wholeheartedly agree. For many of our members we would use two words – avoidable loss. Losses which may have been avoided had the UK been prepared and ready in early 2020, and losses which may be avoidable in future if lessons are learned and learned swiftly and the right lessons are learned.

That’s why we’ve made clear in our written submissions that we agree entirely that Module 1 is a vital and urgent topic which cannot wait. You raise a pressing question in the scope for Module 1: was the UK prepared for a pandemic or, indeed, for another form of civil emergency? This is a vitally important issue. It must be considered as soon as possible, and that’s precisely why we agree with your commitment to timeliness, and we agree with and endorse, in your opening remarks today, the reference to the importance of timeliness and striking a balance between timeliness and the extent to which you are able to explore each and every single issue within the very broad scope of the Terms of Reference.

But equally, my Lady, we agree entirely with the point you made in your written opening statement in July 2022 at page 8, where you said:

“Given the breadth of my investigations, this will not be completed as quickly as some might like. I make no apology for that. I’m determined to ensure that the Inquiry has access to the evidence it needs and has the time to analyse that evidence properly before witnesses appear in front of me.”

In the submissions we make today, we bear very much in mind those driving factors that you identified today and you identified in July 2022. It’s precisely because of your clear commitment, which we welcome, to timeliness, to avoiding unnecessary delay, but also to ensuring that you have the right evidence before you before embarking on public hearings that we respectfully request on three topics that you adopt the approach proposed by the TUC and the Bereaved Families, and respectfully we request that you do take a slightly different approach to that proposed by your counsel this morning.

Those three topics are: disclosure of Rule 9 requests; disclosure of letters of instruction to experts; and disclosure more generally and the test or approach to apply. I’ll take those in turn.

So starting firstly, my Lady, with Rule 9 requests, we agree with Mr Weatherby, King’s Counsel, that Rule 9 requests should be disclosed to Core Participants. Now, in the submissions made by Mr Keith, King’s Counsel, this morning he said you are neither required by the rules nor is it established by past practice. He also used the phrase that it would “serve no purpose”, and he made reference to practical difficulties given the iterative process.

May I summarise our submissions under two headings, one principle, and one practicality. In relation to principle, my Lady, the TUC welcomed in our April 2022 consultation response the principles you set out in your open letter announcing that consultation process. There was a clear and very welcome commitment to transparency and to inclusiveness. We recognise of course that Mr Keith is correct that Rule 9 requests are not mandated to be automatically disclosed by the rules but, in exercising your discretion, we say the transparency which you have been committed to from the outset is a key factor to bear in mind. The rules are essentially neutral. There’s no mandatory requirement to disclose. There’s also no barrier to disclose. As a matter of principle we say you should disclose.

Other inquiries have taken that step, and chairs when exercising their discretion have delayed Rule 9 requests. By way of example, familiar to many of your team, Rule 9 requests were disclosed in a number of the independent Inquiry into Child Sex Abuse modules. So we ask you to exercise your discretion to disclose as a matter of principle and, indeed, we say that that would be in keeping with another phrase used by Mr Keith this morning when he referred to having “an open, indeed eager, frame of mind.” So for transparency reasons in principle we ask that they be disclosed.

Secondly, practicality. Our submission is that it would be efficient and time saving to disclose the Rule 9 requests and to do so early. We noted Mr Keith’s words this morning referring to the Rule 9 requests already made being described as lengthy, complex and wide-ranging. We assume, as they are lengthy complex and wide-ranging, it is likely to take some time for the resulting witness statements to come back to you and to your team. The advantage of CPs having early sight of those Rule 9 requests is we can feed in, we can identify if there are gaps, we can suggest additional queries or clarifications on the ambitious timetable you have set out. We have under seven months to the start of May. We can see that preparation of these witness statements may make some months. We do not want to be in a position where we hit spring 2023 and we start to receive statements which make clear that there was a blind spot or a gap.

We want to avoid that. The reference to the iterative process that was made earlier seems to us not to be a point against us, it’s a point in favour of disclosure. It’s precisely why the Rule 9 request can be disclosed and we can go back. We make that submission without doubting in any way the diligence and expertise of your solicitor team and your counsel team. But necessarily there will be information unavailable to them which is available to Core Participants, given their background and their expertise.

The TUC, for example, the British Medical Association, the Local Government Association, may have information unknown to your legal team. If I can adopt a phrase from Donald Rumsfeld there will be unknown unknowns. They simply won’t know what gaps there are in their knowledge, and what we want to avoid is a situation where we get close to the May hearing, we receive statements, we can see there are gaps in them, and we then have a last-minute scramble, which seems to us to cut against your commitment to timeliness and to trying to ensure that the timetable is adhered to.

A good example of a collaborative approach with the disclosure of Rule 9 requests came in Mr Keith’s welcome words this morning referring to the Health & Safety Executive. That’s not about disclosure of the Rule 9 request itself, but it is an example of where the TUC has raised a concern, and we’re very grateful for the indication this morning that our suggestion that a Rule 9 request be made to the Health & Safety Executive is now under consideration.

You will have seen your submissions on that point at paragraph 25 in particular. Taken shortly, this is an issue of vital importance to the TUC. It’s intimately linked to sub-topic 2 in your provisional scope document, Risk Management. The TUC for over a decade since 2010 has been raising grave concerns that systematic underfunding of vital services, including safety regulators, places the UK at risk and, as you have seen, the TUC’s view is that the UK’s pandemic preparedness was gravely undermined by a number of historical changes to risk management structures and bodies and, in addition, by substantial cuts to their budgets.

You have seen your submission that funding cuts to the HSE and local authority enforcement since 2010 seriously hindered the regulator’s ability to effectively prevent workplace hazards, deter employers from breaching regulations and the law and, put simply, the TUC, as set out our submissions, say the effects of cuts to funding resulted in fewer inspectors, few inspections, much less enforcement action prior to the pandemic, gravely therefore weakened the resilience and preparedness of risk management structures.

That’s an example where we were able to give a reference to the HSE which didn’t appear in your early list and it’s now under consideration. But a similar principle would apply with disclosure of Rule 9 requests where there simply may be unknown gaps which we and other Core Participants may be able to fill.

The second topic is disclosure of letters of instruction to experts. We were grateful to hear and we welcome the fact that today counsel to the Inquiry confirmed that those instructions will indeed be provided to Core Participants before the reports are finalised, so we welcome that.

We simply raise a timing point. The earlier those letters or instructions can be provided to Core Participants, the earlier Core Participants can identify any gaps or any additional issues and return to you, again seeking to avoid a last minute scramble assuming that the reports will take some time to prepare.

In some other inquiries we have seen a situation where you get the report and the letter of instruction disclosed at the same time or often three or four weeks before the hearing, and that doesn’t assist anyone. It seems to us, if they are going to be disclosed, the earlier they can be disclosed the better, particularly in circumstances where the TUC, the Bereaved Families and many other groups are collectives who have large numbers of people who they represent, their representative voices. So the more time we can have the better.

We entirely hear and understand the point Mr Keith made at the end of his submissions earlier in relation to notice, where he said, “We’ll give you as much as possible”, but time is against us and there’s a huge amount to be done.

But the letters of instruction to experts is a good example of where earlier disclosure will avoid problems for everyone. It’s accepted in principle they are going to be disclosed. The sooner we can see them the better.

The third point is about disclosure more generally. Now we dealt with this in our written submissions at paragraphs 29 to 30, and the TUC is also in agreement with the written submissions made by the Covid-19 Bereaved Families for Justice and the Northern Ireland Covid-19 Bereaved Families for Justice and, indeed, with Mr Weatherby’s oral submissions today.

The concern which we share with Mr Weatherby is that the reference at paragraph 50 of counsel to the Inquiry’s note to proportionate and focused disclosure is unclear to us, and it appears to be a recipe for potential arbitrariness in decision-making, particularly when you have a very large team.

We understand Mr Keith’s point, given the scope of the issues you are dealing with here, adopting his phrase “it’s neither necessary nor proportionate for the Inquiry to disclose every document that it receives” and, just to ensure there’s no straw men here, we’re not proposing that; we agree. Our primary position, in keeping with Mr Weatherby, is that the test should be relevance; relevant documents should be disclosed to Core Participants. We accept there needs to be a sift for relevancy, but that’s not the test that’s suggested at paragraph 50 of Counsel to the Inquiry’s note.

We agree that irrelevant documents or duplicated documents don’t need to be disclosed. But our position is “relevancy” should be the watch word. That should be the test.

There is of course an alternative potential compromise which we raised in our written submissions, if you are against us on a relevancy test, and that this idea of a schedule of undisclosed, equivalent of schedule of unused. The question put to us this morning by Mr Keith was: to what end? It’s for the Inquiry to determine whether further areas are required to be investigated. He said it was an immense amount of the further work to little end. But again we say: give the Core Participants some credit. The Core Participants may well spot in a schedule of undisclosed or a schedule of unused a key point unknown to your Inquiry team. Again, we don’t say that to raise any concern about the diligence or excellence of your legal team. We say that because the Core Participants, by virtue of having become Core Participants, are adding value to your process, have particular expertise, have got a significant interest or have played a significant role in the issues. They know matters which simply may be unknown to your team, and we say there is a good end and, again, there’s of course also a good end in principle when we go back to the very first point that I made a little earlier about transparency and openness and collaboration.

Against that backdrop, we do ask that you consider adopting a more open and transparent approach to disclosure, ideally the approach proposed by Mr Weatherby, but there is a compromise alternative which we say is better than what is proposed at paragraph 50 about which we have concerns.

We do need to have a safety net so that Core Participants can review, see if there may have been a matter overlooked and make submissions to you, and then of course it will be a matter for you ultimately as to whether or not that material should be disclosed. We cannot make those submissions if these decisions are made entirely behind closed doors.

We’ve indicated in our written submissions that those forms of schedules have worked well in other inquiries and large scale inquests; for example, they were used in the Hillsborough Inquest to good end.

There’s a number of small additional issues I wish to pick up. I won’t repeat all the points in our written submissions and we’re grateful for the indication from you, my Lady, and from Mr Keith this morning that a number of matters raised in our written submissions have now been resolved or have fallen away. We’re grateful for that.

Before I move to three short points we want to address at the end, the TUC also wishes to support the submissions made in relation to the devolved nations by Mr Weatherby, King’s Counsel, Mr Lavery, King’s Counsel, Ms Mitchell, King’s Counsel, and Ms Heaven this morning but there’s three short matters we want to highlight now drawing on our written submissions. One is specifically about Module 1, my Lady, and two are more general.

Mr Keith: I don’t wish to interrupt but I am just wondering whether my Lady wished to –

Ms Gallagher: I see the time.

Lady Hallett: I was wondering about whether or not we need to break.

Mr Keith: That might be advisable and then we can look forward to hearing the remainder of Ms Gallagher’s submissions after.

Lady Hallett: I’m sorry we’ve interrupted –

Ms Gallagher: I’m very happy to do that. I’m so sorry. I didn’t see the time.

Lady Hallett: It also saves you having to rush through it because we obviously are meant to be taking a break for the stenographer transcribers anyway. We haven’t really decided how long to have for a break. Does anybody have any thoughts as to – I’m happy to come back whenever anybody wants me to but I want people to have enough time to –

Mr Keith: Could my Lady indicate 2.00? That’s just short of an hour and that’s the customary amount of time, isn’t it?

Lady Hallett: Very well. So thank you, Ms Gallagher, if you then finish your submissions this afternoon and also I think we’ve got two others, Ms Henke and Ms Spearing, who want to speak and then I’ll hear whether Mr Keith has any submissions by way of reply.

So thank you very much indeed and we’ll see you this afternoon. 2.00, please.

(1.06 pm)

(Luncheon Adjournment)

(2.00 pm)

Lady Hallett: Next I think we have Ms Henke, Ruth Henke. Oh, Ms Gallagher, I’m so sorry. How could I do that to you. I do apologise.

Ms Gallagher: Thank you, my Lady. If I could start by just apologising to the stenographer for overrunning my time a little early, it does mean this morning I have made myself deeply unpopular by going into lunchtime over the sound of growling stomachs, which I didn’t hear; I’ve quoted Donald Rumsfeld, the US Secretary of Defence former; and, for once, I was the Irish person in the room who was not complaining about the pronunciation of my name. So quite a few firsts.

There’s two short supplementary points arising from the disclosure submissions I made, before I turn to just some final comments on behalf of the TUC. When we referred to the schedule of undisclosed, I’m just asked to make two short supplementary points on that.

The first is of course that all Core Participants have signed the confidentiality undertakings and are entirely committed to your process and to the confidentiality of your process, and the second is that the TUC’s submission is that this should not be a vast amount of extra work, as internally a sift for relevancy will of course have been undertaken, those engaged in document review necessarily won’t be operating in a vacuum and will be giving some form of summary internally to your team about the decision they have made or what the document is.

Now, we say that not under-estimating the significant and onerous task being undertaken by Counsel to the Inquiry and Solicitor to the Inquiry. We recognise that any additional task does add to that burden. But, in our submission, the balance currently as described in paragraph 50, a proportionate and focused test applied by the Inquiry’s legal team without more and without oversight, is striking the balance wrongly and this would be an appropriate alternative.

I mentioned just before lunch that we had three short final matters. I’m afraid given lunchtime it’s now five, but they are brief. So the first is in respect of Module 1, and the public hearings. We share the concern raised by Mr Weatherby earlier about the four-week time estimate. You will have seen this in our written submissions at paragraph 34. Our view is that four weeks for this module seems exceptionally tight, particularly given those six detailed sub-topics in the provisional scope outline. So, with each of those topics and with opening and closing statements, you would be left within the region of three days per topic, and we think that, recognising you don’t need to cover absolutely everything in the public hearing, but that tends, we would say, towards the superficial and is too short.

We also bear in mind the important nuanced submissions that have been made before you by a number of Core Participants today about the differential position of the devolved nations. Just by way of example, in respect of Northern Ireland, you’ve had powerful submissions made today about the differential position in relation to health and social care, the amalgamated health and social care system, there not being an NHS as such answered so on, and it’s very difficult to see how in one of those sub-topics, where Northern Ireland is so very different, you could possibly in three days examine that issue.

So our submission is that four weeks is extremely tight, and we agree entirely with the importance of getting on with it and having this module listed quickly, but our submission is that four weeks is too short.

We welcomed the indication this morning that that’s under review. We don’t press you on any particular time-frame, nor could we sensibly pre-disclosure and in circumstances where we’ve heard additional submissions today which give us pause for thought. But we suggest that it would be appropriate to have an early recognition that, whatever the correct length of time is, four weeks is too short, and we suggest it will be much easier to block time in diaries and then shorten it than to try to do the other, and to try to shoehorn in an additional four, eight or whatever number of weeks it is at a time when diaries have become busy.

So we suggest that that should be dealt with quickly and the nettle should be grasped.

The second point that we wanted to make concerns a matter raised by Mr Bermingham this morning. Mr Bermingham this morning raised a concern for the ADHP about not being able to notify people about Core Participant status, and the TUC supports Mr Bermingham’s submissions on that important point and needing to keep Core Participant status secret for a long period of time, save for those who’s signed the confidentiality undertaking. That’s a practically important point for representative bodies like the TUC, like the ADHP which have stakeholders and members that they need to update. So we echo and support his submissions.

Third point is about location of the hearings. We’ve dealt with that in our written submissions at paragraph 11 to 14. I won’t raise all the points but, just in headline, the TUC welcomes the decision to avoid the Inquiry being exclusively England-centric given its UK-wide remit.

We note the intention is for public hearings in Modules 2A, 2B and 2C to take place in Scotland, Wales and Northern Ireland respectively, and we welcome that commitment.

We just at this stage note that it may be for certain later Modules that the TUC may wish to invite you, my Lady, to consider sitting outside London for at least part of public hearings, even when there isn’t a specific issue about devolved Government. So by way of example, in an impact module it may be appropriate to proceed on the basis that London is not the assumption, and that in fact an impact module could sensibly take place in whole or in part in another part of the UK.

We raised a particular concern in our written submissions about England itself. The TUC may – and we put it no higher than this at this stage, but given that the issue was raised in the outline submissions and this is your first hearing, we thought it sensible to put down a marker – the TUC may later wish to request that you consider sitting for at least part of the public hearings in a later module in another English city other than London.

We can’t make the submission firmly at this stage; it we’ll of course depend when we see the later Modules. We raise it because there are certain sectors which were significantly adversely affected by the pandemic in which workers faced increased risk of loss of life and other hardships which are centred in the north of England, and there are also particular issues arising, which we’ll come to much later in this Inquiry, about the failure speedily to respond to developments in London, which could have saved lives in northern England, in Northern Ireland and elsewhere in the UK.

Against that context, in circumstances where you recognise rightly the symbolic importance of this being a UK-wide Inquiry, we think it must not be London-centric. The norm should not be London, and we may wish to address you on that at a later stage.

Fourth point, is about identification of future modules. We’re conscious from paragraph 24 of Mr Keith and counsel to the Inquiry’s note that there is will later be some systems modules and some impact modules. We don’t yet know the precise shape, and of course we recognise that, even when you tell us more about the shape, it may necessarily change. This is an iterative process; as evidence comes in you may need to add modules so on.

We do think in contrast to some other inquiries which have proceeded in a modular way where the initial list of modules was given earlier, we think the fact that the initial list of Modules is not public is likely to cause some problems. We just give two examples.

First, you may have Core Participants or putative Core Participants applying for Modules which are not the most relevant to them and, if they had the full list, they may be able to make a different decision. We’re conscious that a number of those who applied were told, “Well, you may want to wait and apply for a later module.” But, if they knew what the later Modules were that were coming, they may be less likely to make an application early which you think is better placed at a later stage. We’re mindful of the fact you had 130 applications and that of course adds to the onerous task that your legal team is undertaking. Secondly, it would assist with us being able as Core Participants to make focused and targeted scope submissions. By way of one very small example, an indication was given in Mr Weatherby’s submissions on behalf of the Bereaved Families about places of detention. It may well be that you think places of detention is going to be considered in a later module, Module 1 is not the place for it. At the moment we simply don’t know. So it means we’re having to make submissions a little in the dark because we don’t know the later intended shape, and we think it would assist all of us if we could have the intended shape public earlier, and we hope that that would also take some pressure from your team. So we raise that in a constructive way, we hope.

The fifth point that we want to raise and the final one concerns the issue of balance, and we do echo some submissions made by Mr Bermingham for the Association of Directors of Public Health this morning on this point. We dealt with this in writing at paragraphs 15 to 19 of our written submissions and I take it shortly. You will be aware that the TUC and the British Medical Association were originally refused Core Participant status in this module and the original list of 26 Core Participants was very heavily weighted towards officialdom, towards august public bodies. Of 26 Core Participants originally granted that status there were the four Bereaved Family groups, there was Imperial College, and others were all public bodies in some shape or form. That’s over 80 per cent. We recognise of course, and we do not question in any way, those that have been granted Core Participant status here. We’re very grateful for the recreation given to the TUC and indeed also to the BMA. At this stage we simply raise a concern that going forward we’re in the foothills of this Inquiry now that early stages. Non-officialdom, non-governmental bodies, non-public bodies, have a real and valuable role to play, and I hope we as the TUC can show you that in Module 1 and going forward.

We raise this simply because we are concerned that decision-making which tends to lean towards Government will mean essentially that you have a skewed process, and that’s not something which you want, it’s not something which we want, and we raise it here against the backdrop of us having originally been refused, a decision which we’re very grateful to have had overturned.

We’re now here, and we wish to play a collaborative and constructive role in the Inquiry. But we also wish to ensure that other nonofficial voices going forward are given appropriate weight and Core Participant status where appropriate.

Against that backdrop, we understood from the initial decision that it may perhaps have been thought that the TUC was an Impact module-type Core Participant. I hope it’s now clear that we’re also a Systems module-type Core Participant, and there will be other non-governmental, non-public body organisations which have valuable evidence to give you in relation to systems, but who will also be able to play a valuable role as a Core Participant, including the right to make submissions to shape the provisional scope outline itself, having access to the disclosure, being able to test the evidence of institutional witnesses and indeed suggesting lines of enquiry.

Against that backdrop, my Lady, they are our submissions.

Lady Hallett: Thank you very much indeed. All extremely constructive, and I am very grateful to you both for your written and oral submissions. A number of the issues you have raised have caused me particular concern, so I can assure you that I am very receptive to some of them. I don’t know whether I can reflect all your submissions in my decisions, but I will consider them very carefully.

Ms Gallagher: Very grateful. Thank you.

Lady Hallett: Having called on Ms Henke prematurely, is she around?

Opening Statement by Ms Henke

Ms Henke: My Lady, prynhawn Da, ruth Henke on behalf of the Welsh Government.

The Welsh Government would like to take this opportunity to confirm once more its whole-hearted commitment to giving you and your team the fullest possible co-operation in investigating its response to the unprecedented challenges faced by everyone in Wales, every public authority, and every business in Wales as a result of the pandemic.

My Lady, the First Minister on behalf of the entire Welsh Government shares your commitment to putting the bereaved, those who have suffered hardship and those who were affected by the decisions of the Governments of the UK at the heart of this Inquiry. The Welsh Government will make good that commitment by fully co-operating with this investigation.

Our overriding aim is to assist you in your task of ensuring that those, in particular, who lost their loved ones have all their questions asked and receive the complete and candid answers we acknowledge they rightly deserve.

The Welsh Government is committed to learning not only the lessons of this continuing pandemic but also to ensure that future Welsh governments are in the best position to respond to future public health challenges.

My Lady, diolch, thank you.

Lady Hallett: Thank you very much indeed. Ms Spearing?

Opening Statement by Ms Spearing

Ms Spearing: My Lady, good afternoon. I represent the UK Health Security Agency. Firstly, there are no written submissions from those whom I represent and no discourtesy is intended by that. I certainly only have in fact three short points and one response to a submission that my clients would wish to raise.

The first is that, like many us who appear before you today, the UK Health Security Agency are absolutely committed to assisting you with this very challenging process. The second is that we will do all we can in order to facilitate and respond, and we have been thus far working well with all of those parties who have been communicating with the agency.

The third is in fact important, that we do support the submissions that counsel to the Inquiry Mr Keith has already represented, and I don’t repeat those. We support and endorse the careful consideration that he has given in dialogue with many of the Core Participants about the challenges that this Inquiry will present.

Finally, it’s a response to a submission, and that is in relation to the importance which you have already raised of good dialogue, of collaborative and cohesive conversations in order to be able to respond whether that be to the Rule 9 disclosure requests, to the practicalities of challenges that this very novel Inquiry will present to many of the participants, the position statements which have been raised by many.

My Lady, we ask that you bear in mind the challenges that many of the Core Participants will have where multiple individuals may have moved between agencies, may be working in current organisations with status, who may have been linked to Core Participants where such boundaries may in fact hinder access, or perhaps legal advice where those firm position statements are sought which then may prevent the expeditious exploration of facts and information to be importantly provided to your team.

So those are all of our submissions and everything that I wish to say. Thank you very much.

Lady Hallett: Thank you very much indeed. Mr Keith, do you have any observations by way of response?

Response Statement by Mr Keith

Mr Keith: My Lady, thank you. There is obviously a great deal to reflect upon and, my Lady, for you to determine in due course. But may I express my gratitude for the very helpful and informative submissions which have been made. The manner and the style in which they have been advanced and the matters that they have covered are a testament to the collaborative approach for which I and others have been advocating.

My Lady, some of the points can’t be responded to today and nor would you expect them to be, not least because some of them are technical, some of them are specific and will require considerable thought and reflection and, therefore, it’s best that I simply don’t venture into some particular territories.

In relation to panellists, my Lady, in relation to that issue, I would strongly suggest that that is a matter for the Prime Minister as the sponsoring minister. It is for her to decide whether to appoint other panel members to sit with you and, therefore, although my learned friend has invited you to contribute to the decision to lend support to the appointment of other panel members, may I invite you to resist that invitation, however attractively advanced it is. It is simply not a matter for debate.

Some submissions have been made about the provisional outline of scope, and the complaint was reiterated that there had been no advance opportunity in advance of the promulgation of that document for Core Participants to make their submissions and to make their positions plain. My Lady, the outline scope document preceded the appointment of Core Participants and, therefore, there was procedurally no means by which fairly persons who may have an interest in due course could have contributed to that process.

But in any event, the Inquiry had to start somewhere and fairness and transparency requires a proper opportunity for comment, which of course has been demonstrated today and exemplified in the written submissions and, therefore, there has been no unfairness done by virtue of an absence of an anterior opportunity to comment.

In relation to some of the points made in relation to scope for Module 1, a submission was advanced to the effect that the outline of scope document failed to make sufficiently plain that Module 1 covered all four nations and of course dealt with and would deal, will deal with reserved and devolved matters.

True it is that there is only one express reference on the face of the outline of scope document to the United Kingdom scope of that module, and of course to the need to examine devolved and reserved matters. But it is absolutely apparent from the detail of the Rule 9 requests which have gone out or will go out to Scotland, Wales and Northern Ireland that the scope of Module 1 indubitably includes all areas arising across the United Kingdom that are relevant to preparedness and resilience, and it simply cannot sensibly be suggested otherwise.

Module 1, it was suggested furthermore, might not be looking at issues of discrimination and disproportionate impact. My Lady, the degree to which Government structures as part of their preparedness considered discrimination and the possibility of disproportionate impact on a variety of sectors and groups is an evidential issue which will be considered.

What cannot be considered, however, of course, is how in a more granular way each part of the Government preparedness structure should have provided for the needs of each of those sectors to which it necessarily had regard. So, putting it another way, we will and must look at the general degree of preparedness or lack thereof and the extent to which the Government did have the variety of groups and persons and people to whom I have referred in mind, but it won’t form part of the Inquiry’s job to try to replicate that process and to try to draw up detailed plans in place of what the Government did. That is not the focus of Module 1.

Planning within the social care sector. Again scrutiny of how the Government prepared necessarily includes an examination of the degree to which they had that sector and others in mind.

Then there are the three procedural pillars: disclosure of the Rule 9 requests, position statements, and the disclosure of lists of undisclosed documents to Core Participants.

My Lady, there is no legal requirement, as I have said. There has in certain instances been a practice of disclosure of each of those documents, but there is by no means an overwhelming case for them and nor has an overwhelming case been established by practice. It will be, my Lady, a matter in your absolute discretion to decide what best promotes fairness and efficiency.

In relation to disclosure of the instructions to experts, I have already said that the Inquiry will disclose those instructions and they will be disclosed at a sensible stage which permits the Core Participants to be able to comment on the width of the expert reports, framed by those instructions, at a time which allows enough opportunity thereafter for the reports to be varied before they reach their final emanation. That is good, sensible practice, I would suggest.

Disclosure. There has been some comment made in relation to the approach adopted by counsel to the Inquiry in paragraph 49 of the written submissions to disclosure. My Lady, may I say straight away that paragraph 49 expresses itself as an aim; it is not the standard. It may be thought that it is dancing on the head of a pin to try to distinguish between what is proportionate and focused and relevant, but I have said this morning, and I repeat, of course the Core Participants will receive material that is relevant and, in our Inquiry and the throwing out of a net wide enough to receive relevant material, we will look for material that is potentially relevant.

I don’t propose to say anything about the Listening Exercise, but turning finally to the question of the retention of documents, the point was made forcibly on behalf of ADHP that the retention-of-documents warning that Mr Connah sent out in January may not have been wide enough to go beyond the demand that is placed upon Central Government.

Can I say that the letter invited and made perfectly plain to Central Government that the warning was to be promulgated to all bodies exercising public functions and, therefore, that necessarily includes local government.

Finally, my Lady, I should say, in the context of the issue of the overwhelming and plain obligation to retain documents, that I believe that Mr Smith will be when preparing the redaction protocol for the benefit of document providers that he will emphasise, re-emphasise of course the message on the overarching obligation to retain and preserve material.

There was a final submission in relation to the need for remote location made by leading counsel on behalf of the Scottish Covid-19 Bereaved Families for Justice and we will give urgent consideration to setting up the Inquiry by way of remote location to allow persons to view and follow these proceedings online.

My Lady, that is all that I propose to say in relation to the submissions which have been advanced on behalf of the Core Participants, unless there’s anything else that you would wish me to address.

Lady Hallett: Thank you very much, Mr Keith.

I thank all the Core Participants, those who made oral submissions and those who have made both oral and written submissions. They’ve all been extremely constructive and helpful and, I repeat, I am very grateful to them and for the offers of support because, to be frank, we’re going to need it. We have a huge task ahead and we will need the support of everybody, particularly the Core Participants, and with that support I hope we can achieve the aims that I set out earlier.

So thank you all very much indeed and thank you to those who have come who didn’t have a speaking

role. We do appreciate your interest in everything

that’s going on. So thank you all.

(2.28 pm)

(The preliminary hearing concluded)