Transcript of Module 1 Preliminary Hearing on 14 February 2023

(10.30 am)

Lady Hallett: Good morning. This is the second preliminary hearing into Module 1 of the Covid-19 UK Inquiry. It is being held remotely and therefore I shall keep my observations to a minimum and I shall try to avoid interrupting the advocates who are speaking.

We intend to deal with a number of important issues that both counsel to the Inquiry and the Core Participants have raised in their written submissions to me. I am very grateful to all of them and I hope that, given I have received the written submissions in advance and had an opportunity to consider them, the advocates can focus on the main parts of their submissions that they wish to highlight today.

I am sitting here in a hearing room on my own. Counsel to the Inquiry are in a separate room and other participants are attending remotely, and I believe that everyone has been informed as to the system that has to be employed should anybody wish to speak who hasn’t already given notice of their intention to do so.

So with those observations, given we have so much to get through today, I will call on Mr Hugo Keith, King’s Counsel, counsel to the Inquiry. Mr Keith.

Mr Keith: (… unclear …)

Lady Hallett: Can you pause, Mr Keith. I don’t know if the public and the Participants are having problems but your sound is not perfect.

Mr Keith: Yes, it appears to be … (unclear).

I think it’s been solved. The echo’s disappeared. Can you hear me clearly now?

Lady Hallett: Yes, we can at the moment, Mr Keith. I’ll interrupt you, if I may, if there are problems again.

Submissions by Mr Keith, KC

Mr Keith: Thank you.

So, my Lady, this is the second preliminary hearing of Module 1, the first one held by you on 4 October, some four months ago. I don’t wish to reintroduce the Core Participants or their legal representatives. There remain (… unclear … )

I should say that following the first preliminary hearing on 4 October a number of out of time applications were made unsuccessfully –

Lady Hallett: Mr Keith, I’m sorry. Can you pause there. I’m afraid the audio is not good. If people who are following online have satisfactory audio, that’s okay, I am prepared to put it up with, but I just want to check. I wonder if we could find other members of the Inquiry team following online whether they can hear what Mr Keith is saying clearly.

I have seen a note from the stenographer that it’s not clear enough for the verbatim record and so I will rise to see if the problem can be sorted. I’m very sorry to everybody.

Mr Keith: Thank you, my Lady.

(10.35 am)

(A short break)

(10.41 am)

Lady Hallett: Mr Keith, we hope the problem has been fixed. Would you like to speak so we can test the system.

Mr Keith: We believe it has been fixed, my Lady.

Lady Hallett: Thank you.

Mr Keith: Thank you. So as I was saying, but I wouldn’t have been heard saying it, written submissions for today’s hearing have been received from eight Core Participants, in one case jointly, and we’re very grateful to them for having provided us with their observations and their insights and for the brevity with which they have done so. I believe you will be hearing oral submissions, my Lady, from five of the Core Participants.

Turning to the matters on the agenda, the first issue is to address the matter of progress.

Since 4 October, a great deal of work has been done and at a very considerable pace. As of yesterday, 160 Rule 9 requests have been sent out in Module 1, either in draft form (that is to say, they may be subject to amendment in light of the initial response from the recipient) or in final form, some of them are very long and complex, and the Inquiry team has also had multiple meetings with many of the Government Rule 9 recipients. Only a handful of first time Rule 9s remain to be issued, although of course we anticipate having to send more Rule 9s out in due course, more iterative Rule 9s, as our understanding becomes more complete and we’re able to identify areas which may require further exploration.

We provided details of the Rule 9s which had been issued by 30 January, in annex A of the CTI note of that date, and in that 27-page summary the broad nature of 49 of the Rule 9 requests, which had been sent out on 30 January, were specifically set out. We also set out overviews of other Rule 9 requests to bodies in the voluntary community sector, the trade unions, medical, scientific and other relevant professional bodies and individual scientists. As Mr Weatherby, King’s Counsel, almost submitted in his written submissions, the net has been cast widely. Since 30 January, around 45 further requests have been made. So we’ve received draft and, in some cases, final witness statements from 42 organisations and individuals.

My Lady, the Core Participants were kindly provided by the legal team on Friday with a full list of the organisations and individuals who have provided draft or final witness statements but to give some idea of the scope and extent, for public purposes, they include: the Cabinet Office; clinically vulnerable families; Covid-19 Bereaved Families for Justice; the Department of Digital Culture, Media and Sport; the Emergency Planning Society; Inclusion Scotland; the Local Government Association; Government Equality Hub; Public Health Wales; Public Health Scotland; the Northern Ireland Council for Voluntary Action; the TUC; the UKHCA; the Vaccine Impact Bereaved United Kingdom; the Welsh Local Government Association, and many, many more.

The majority of the remainder of the statements and responses to questionnaires are expected to be received during the course of this month. Fourteen corporate statements or full statements, some of them likely to be very lengthy, are expected this week. It follows that many thousands of documents and exhibits have already been received, I think, from around 16 document providers so far and those documents amount to hundreds of thousands of pages. Not all of them are of course relevant and disclosable – that’s not how the system works – but there’s no doubt that we have received a very large amount of documentation.

I want to commend, if I may, the legal team in Module 1 for their diligence and hard work in scoping, drafting and issuing so many Rule 9s and in dealing with the vast array of documentation which has been received.

Turning to disclosure. The extremely burdensome process whereby each documentmust be individually reviewed, then sifted for relevancy, redacted where necessary and then sent back to the document provider for comment, which comment must be provided within three days, has, however, been problematic.

As we explained in the CTI note of 30 January at paragraph 11, each and every document is required to be reviewed and irrelevant information, including to a very large extent personal data redacted in accordance with the redaction protocol, must be removed. Such irrelevant information includes the names of junior officials who have not taken relevant decisions themselves or substantially contributed to the decision-making or had an important role in implementation of decisions. Such persons can be distinguished from those persons who held more senior positions in the senior Civil Service, the names of whom have been provided by all of the Government departments whom we have approached.

I must also make clear that each redaction in this provision and the redaction process is naturally undertaken by the Inquiry, rather than by the particular Government department involved, and it will also be subject to change as a result of our own ongoing scrutiny of the evidence and any matters raised by the Core Participants following disclosure to them of the redacted document.

The problem, however, encountered by the Inquiry is that, given the profusion of policy documents and Government emails, there are literally thousands of such manual redactions that are required. In addition, in many cases, it’s not proved possible for the reviewers, the paralegals and other lawyers who do the review process, to be sure that the particular name which they were seeking to redact was actually irrelevant, notwithstanding the exclusion of that particular name from the lists provided by the Government departments.

So the process of review and disclosure has slowed down considerably, which is why the Core Participants, although they did receive the first disclosure tranche before Christmas, have received in total only around 700 documents in the first three tranches.

Although those disclosure tranches did include exhibits from the main UK Government department concerning preparedness (namely, the Cabinet Office), the amount of disclosure was simply not as we envisaged it would be.

As you would expect, my Lady, the Inquiry team has taken a number of steps which we’re confident will speed the process up, while still ensuring that only irrelevant information is redacted, and those steps include increasing the number of reviewers available each day to review the documents. The Core Participants may rest assured that very considerable resources are being directed at this process.

We hope that, by the time the process is running smoothly, the number of documents reviewed weekly, of which the Core Participants then receive a proportion, will run into the thousands. Another step taken is to put into place a system whereby the headers to the emails are block redacted in the first instance, leaving the later parts of the particular email to be subject to manual redaction of specific names. We’re also working towards the implementation of a system of automatic redaction, a mechanical redaction process, by the document handling system. So those steps together will, we’re confident, lead to the process speeding up.

Nevertheless, I accept that, whilst we have received the documents from the various material providers, broadly in line with the timetable that we initially envisaged, we have not been able to get relevant documents out to the Core Participants as speedily as we would have wished.

My Lady, that brings me to the subject of the commencement date of the public hearing. As I submitted to you on the last occasion and as you observed in the course of your first preliminary hearing and in your ruling which postdated that hearing, the Core Participants play a vital role in this collaborative, forensic process. One of the major ways, as you know, in which they participate is by way of being able to scrutinise the disclosed relevant documentation for themselves and thereby assist with the identification of suitable witnesses to be called and with the important process by which is lines of enquiry and topics are drawn up for the purposes of questioning those witnesses.

In this way, amongst others, the Core Participants participate meaningfully in the public hearing. Put bluntly, we agree that it would be unacceptable for the voluminous disclosure, for example, to be made on the eve of the hearing, as is feared by one of the Core Participants, because that would clearly undermine their ability to participate meaningfully.

As I cannot guarantee that, as was provisionally hoped to be the case, that the Core Participants will receive almost the all the disclosure to which they are entitled by mid-March, I must invite you to consider putting back the provisional start date of May to early June.

In the general scheme of your Inquiry, this is a fairly modest adjournment application but it will allow, if you grant it, a proper opportunity to the Core Participants to get on top of the materials and, as a necessary part of that process, time to get the documents to them.

My Lady, you will immediately have appreciated of course that the putting back of Module 1, if that be your decision, will have a direct impact on Module 2 and indeed on each of the Inquiry’s remaining modular public hearings, though not necessarily on the overall length of the Inquiry. But given that today is concerned with Module 1, I don’t propose to say any more on that subject. Suffice to say a great deal of thought will of course be given to the various ramifications if you do order a delay, modest though it may be, in the commencement of Module 1.

A related issue is the length of the Module 1 public hearing. Some of the Core Participants argue with considerable force that the current provisional timetable of four weeks is too short to address the issues that will arise in Module 1 and to be able to call the number of witnesses from whom you must surely hear. I agree. A fortuitous consequence of putting back the start of Module 1, if that again be your decision, would be that it would allow us to extend modestly the length of the public hearing and I would invite you to consider doing so if you ordered that the commencement be put back.

May I then turn to scope, which comprises an important part of the submissions made by the various Core Participants. The Core Participants have very helpfully enquired as to our position in relation to such matters as devolved preparedness in Northern Ireland, including issues related to the collapse in the power sharing agreement, the land border with the Republic of Ireland and particular role and functions of local authorities. Also issues arising in relation to the Welsh infrastructure dealing with preparedness, including issues of funding, intergovernmental relations, coordination and the standard in approach to planning and preparation.

One of the Core Participants has also asked us to address preparedness for infection control in hospitals and resourcing for infection control measures in hospitals and care homes, also in relation to PPE and stockpiling.

The Covid-19 Bereaved Families for Justice Cymru also ask whether we’ve issued Rule 9s relating to the Welsh Government’s role in resilience and civil emergencies, into organisational co-operation and pandemic planning.

Query has been raised in relation to the World Health Organization at CEPI, a coalition for epidemic preparedness innovations, whose offices are in Oslo, London and Washington.

The Covid-19 Bereaved Families for Justice group and the Northern Ireland Bereaved Families for Justice group, together for the purposes of this preliminary hearing, also ask about the state of play concerning the Rule 9s for key politicians, civil servants and administrators from the UK Government and the devolved administrations, which is an issue that we flagged up in the CTI note.

Finally, the TUC has asked for more detail about later modules in light of its concern about the extent of overlap that may exist between Module 1 and the later modules. So by way of example, my Lady, they ask whether preparedness in connection with social care, to give just one example, be considered in Module 1 or left for your consideration in later modules, in particular the module dealing with the care sector, and similarly preparedness in relation to PPE, preparedness in relation to the Health & Safety Executive.

So dealing with them all together, may I just observe, by way of initial comment, that we understand that the Core Participants have not of course seen the actual Rule 9s and so quite understandably cannot know the nature of the mesh, even if they know that the net has been widely cast. The actual scope of Module 1 and the issues and questions that will arise for scrutiny will, however, become clear from the material that is gathered under the Rule 9 process and then disclosed and from the witness evidence proposals. But in advance of reaching that stage, I can provide the following information.

In relation to Northern Ireland, we had sent a Rule 9 request to the Local Government Association, the Welsh LGA, the Convention of Scottish Local Authorities, the Northern Ireland LGA and the National Police Chiefs’ Council, in order to ascertain the position and to receive information about the local government level and the structure, the role that they play in the overall structure for preparedness and civil emergencies.

This has been done with the intention of gathering a range of evidence across the whole United Kingdom but, in particular, in relation to the key players at that level. They were involved in local resilience forums, regional resilience partnerships, and local resilience partnerships in Scotland and, most importantly for the purposes of the Northern Ireland Covid-19 Bereaved Families for Justice, question the emergency preparedness groups in Northern Ireland.

We readily appreciate that Northern Ireland is distinct in terms of which bodies carry relevant statutory duties related to civil contingency matters and so the Rule 9s which have been issued to the emergency preparedness groups are specifically designed to ensure that we have a more complete picture of preparedness in Northern Ireland.

In relation to the request concerning the Welsh Government, we have addressed the majority of the issues raised in the written submissions but, in relation to the specific issues of preparedness for infection control in hospitals and resourcing for infection control measures in hospitals and care homes and resourcing for PPE and stockpiling, some part of Module 1 will of course be concerned with the overarching, high-level issue of funding and resourcing generally across the organic structures concerned with preparedness. But given that Module 1 is concerned with the structural position and the policy position, those specific issues are more readily considered in the context of your later modules because, of course, they deal more directly with the specific issues of PPE, stockpiling and infection control measures. So they will be more appropriately addressed later.

In relation to the World Health Organization and CEPI, we’ve contacted the World Health Organization. They were unable to provide a written statement. Rule 9 obviously has intraterritorial jurisdiction in effect only but they had provided us with certain information and material which we are considering and we will ponder further the utility of contacting the CEPI.

We’ve sent out approximately 45 Rule 9s to key politicians, civil servants and administrators from the United Kingdom Government and the devolved administrations, and more are imminent. So in response to the issue and the question raised by the Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice, the state of play concerning Rule 9s in relation to that part of the Government structure is that it is well underway and a great deal of work has been done dealing with gathering evidence from those respective bodies.

The final matter is that of the overlap concern raised by the TUC. Again, I repeat that high-level preparedness on the part of the United Kingdom Government and devolved administrations will of course be addressed in Module 1 but sectorial and operational readiness will be addressed as part of your later modules and I hope that will help give some guidance to the Core Participants as to our direction of travel.

The next item concerns the document management system, Relativity. Some Core Participants have expressed a degree of frustration with the functionality of the Relativity system. One Core Participant invites you, my Lady, to change horses in mid-stream and move to an entirely different system.

Relativity, my Lady, is arguably the industry standard in the context of statutory inquiries and has, in fact, stood up well to the demands placed upon it. We, of course, acknowledge that functionality differs between systems but may I suggest that the answer to the possible lack of familiarity with the functionality of the system and its peculiarities, it’s for the Core Participants to contact the Inquiry secretariat for assistance, as one or two of them have already done.

Epiq (who are the body concerned with the management of the system and its provision) have, in fact, provided sessions over the last two weeks, having invited all Core Participants, and have emailed the Core Participants again with a link which will enable them to access videos of those training sessions.

One Core Participant wisely, to ease its own use of the system, persuaded the Inquiry team to alter the field tagging system so that documents can be marked with additional fields relating, in fact, to relevancy and whether or not the particular document was a key document, alongside the comments which they are manually able to make on the system.

So we would invite the Core Participants to contact the secretariat and if they’ve got problems or difficulties with their use of the system to see what assistance can be given to them.

My Lady, turning then to the issue of Parliamentary privilege, we raised this issue, my Lady, in the CTI note out of an abundance of caution so that the Core Participants could understand the general approach that the Inquiry is likely to take.

At the heart of this issue is Article 9 of the Bill of Rights 1689 which provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. An important point of principle does in theory arise, namely whether in a statutory inquiry, such as your own, the impeaching or questioning of statements made in or to Parliament or the introduction to these proceedings of Parliamentary statements or reports, for the truth or worth or validity of what is being said, infringes Article 9 of the Bill of Rights.

Of course, there’s no debate and there’s no issue about this, that reference may be made to any Parliamentary material for historical context, but what Mr Weatherby, King’s Counsel, has suggested in his written submissions is that there is a purposive argument which leads to the proposition and the conclusion that because a statutory inquiry, including one under the 2005 Act, is not permitted to enquire into civil or criminal liability, it is not therefore a place or a court which attaches the protections of Parliamentary privilege. So, in essence, he advances a purposive argument. But, on the face of it, we respectfully suggest that that argument is unlikely to be correct. Firstly, on the face of it, this Inquiry is arguably any court or place out of Parliament. The word “place” must be given a meaning beyond that of “court”.

Secondly, that the Joint Committee on Parliamentary Privilege of March 1999 opined that a place did indeed include a tribunal and that, were this issue to have arisen in the context of the statutory scheme then in force in 1999, which was the predecessor Act to the Inquiries Act 2005, namely the Tribunals of Inquiry (Evidence) Act 1921, the privilege would undoubtedly apply.

The Joint Committee, in fact, recommended the place should be defined in statute to include any tribunal having power to examine witnesses on oath so that any statutory inquiry would be such a place. That would then bring, or would have brought, the position in the United Kingdom into line with the Australian position, under the Parliamentary Privileges Act 1987 Australia, which replaces the wording “court or place” with the words “with any court or tribunal”.

I should say, lest Mr Weatherby is concerned that we are infringing Parliamentary privilege by referring to Parliamentary material for the purposes of this debate, you are, of course, empowered as a rule court to rule on whether the privilege applies at all and there is high authority, a Privy Council case of Buchanan v Jennings, which provides or makes plain that the courts may refer to Parliamentary material for the purposes of ruling on whether or not the privilege attaches.

Thirdly, the subsequent Government consultation paper to the Joint Committee report proceeded on the premise – the clear premise that the privilege did extend to tribunals and courts and the Joint Committee on Parliamentary Privileges report of June 2013 recommended that no statutory changes were needed.

We might also add that the purposive argument advanced is probably wrong because it fails to recognise that Parliamentary privilege extends to public law proceedings, in which there is, of course, no determination of civil or criminal liability and in which Pepper v Hart and Wilson v First County Trust Limited represent exceptions to the Parliamentary privilege rule.

Then, lastly, my learned friend refers to the Chilcot Inquiry. That was, of course, a non-statutory inquiry, for the precise reason that it should be enabled to examine proceedings in Parliament.

So, my Lady, provisionally, we respectfully suggest that there is no real argument about the fact that the privilege does apply to your Inquiry. However, the submissions overstate the significance of the issue in the actual circumstances of your Inquiry.

The issue of Parliamentary privilege is very unlikely to present a problem because, as the CTI note sets out in detail, what we’ve done is we’ve sought simply to replicate such statements or materials, the reliance upon which might have breached Parliamentary privilege, by way of formulating our Rule 9 request in full knowledge of what we know the witnesses to have already said or provided to Parliament, and we’ve also sought on our own account and afresh the documents which have been provided to select committees and the bodies such as the National Audit Office.

So to a very large extent – in fact, completely – we have covered the ground by way of our own Rule 9 requests and our own seeking of and the provision of relevant documentation.

As for the opinions and reports from the select committees themselves, they are covered by Parliamentary privilege if, in principle, the privilege attaches to your Inquiry, but they have little utility in the general scheme of things because of the obvious feature that it is for you to examine the evidence and to reach your own conclusions. Therefore, the conclusions and reports from select Parliamentary committees and the National Audit Office may be of little assistance to you as part of that process, although of course I repeat there will be multiple references to such material as part of the historical context underpinning Module 1.

We venture to suggest that our approach is the right one. It’s been described pleasingly as a sensible one by Scottish Covid Bereaved, and so we don’t at this stage, at any rate, the issue presents a practical problem.

May I therefore invite you to consider that the issue requires no resolution or ruling now but, naturally, you will keep the matter under review. If we do encounter material that is deemed relevant, and which we’re unable to introduce into the Inquiry by way of replicating the oral evidence or statement or resourcing the document, then we will bring the issue back to you, at which point there may be – only may be – a requirement to resolve the point of principle.

Turning to expert evidence, the Core Participants refer to the receipt of Professor Heymann’s draft report. He, my Lady, as you know, is the expert instructed to deal with the issues of epidemiology and virology. We have received his draft report. We are in the process of reviewing it and we anticipate being able to provide it to the Core Participants in the next ten days.

We anticipate receipt of the other draft reports from Professor Whitworth, Dr Hammer, Professor Marmot, who you will recall is the author of the seminal report Fair Society, Healthy Lives in February 2010, Professor Bambra, Bruce Mann and Professor David Alexander, and we anticipate receiving those reports in March. Again, we will need to review them before they can be provided to the Core Participants but we’re confident that we will receive them by the end of March, so the picture is not as grim as may have been painted.

If you do order Module 1 to start in early June, there will be sufficient time for their proper consideration.

Then there is the submission by Covid-19 Bereaved Families for Justice and Northern Ireland Bereaved Families for Justice that experts be appointed to examine the issue of structural racism and discrimination as part of Module 1. My Lady, I have very considerable reservations about the wisdom of this proposal for a number of reasons.

Firstly, the Inquiry is already looking intensely at the way in which protected characteristics were or were not probably safeguarded in the particular context of each module but most particularly Module 1, for present purposes. Protected characteristics include, of course, race so the foundational basis of any finding of structural racism is already part of the Inquiry’s remit and, therefore, on its face, does not require further evidence or expert evidence to be pursued and obtained specifically on the issue of whether or not, as a conclusion, there was structural racism.

In practice, it means there will already be, and you have ordered that there be consideration of the extent to which the Government and the various bodies did take into account the position and the needs of minority groups and other vulnerable groups and those suffering from inequalities when making civil emergency plans, and race, as I’ve already indicated, is a necessary part of that examination and is referred to, we anticipate, in Professor Marmot’s draft report.

Next, structural racism is a conclusion, in effect, to the effect that public policies, institutional practices, cultural representations have been seen to be worked in a way which perpetuated racial group inequality. But Module 1 is not looking at and could not possibly look at all policies and all institutions and all institutional practices and all cultural representations across all the Government departments and the local authorities involved in the United Kingdom and devolved administrations emergency preparedness. The bodies and institutions which are part of the examination of Module 1 are not a unitary body, for example, a police force. They are the whole breadth of Government. So the search for the necessary indicia of structural racism would be an impossible task for Module 1.

Module 1, in connection with inequalities, is looking at the extent to which, by contrast, relevant bodies failed to have proper regard to the needs of minority groups and those suffering from inequality, not whether there was structural racism on the part of some or all of those bodies. So we would respectfully suggest that the issue which underpins the submission, namely the extent to which Government practices and decision-making was affected by a proper consideration of the needs of individuals, minorities and sectors is properly addressed by the way in which Module 1 is going about its task and later modules of course, as you know, will, in fact, directly be examining the issue of inequalities.

So for all those reasons, we would invite you not to pursue or to go down the route advocated by that particular Core Participant, which is to order the instruction of expert evidence covering the issue of structural racism.

A further point raised by Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice is the request that letters of instructions to the experts be disclosed now because they fear that they won’t, at least under the process as originally envisaged, receive the draft reports in time to be able to contribute meaningfully to the process of identifying additional areas which will require to be reported upon.

In my submission, providing letters of instruction now is neither necessary nor sufficient. It’s not necessary because if you do decide that the commencement of the public hearing will be put back there will be time enough in late March, in advance of the process of inviting the Core Participants to contribute to the witness evidence proposals, for them to receive and consider the draft expert reports. But it’s also not sufficient, my Lady, because the letters of instruction provide only the framework for the expert reports themselves and they say nothing about what the ultimate opinion may amount to. The Core Participants need the draft reports in order to be able to understand what is being opined upon and that is, of course, what we will be providing in due course.

I should say also that, as you know, the Core Participants have been given a list of topics in addition, upon which each expert is being invited to provide their opinion.

Turning then to the issue of the evidence proposal procedure and Rule 10, we note the submissions advanced by Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice. May I emphasise that, contrary to their reading of the CTI note, there is no suggestion at all that they will not be permitted to ask questions under Rule 10. The note merely stated what is obvious, which is that Core Participants have no right to ask questions. They require your permission. But, obviously, counsel to the Inquiry does not require analogous permission.

The Scottish Covid Bereaved and Covid-19 Bereaved Families for Justice Cymru invite the Inquiry team to consider instituting an additional process whereby Core Participants may be permitted to meet counsel to the Inquiry after they have submitted their proposals on the CTI evidence, lines of questioning proposals, so that they have an opportunity to better explain to us the rationale underpinning their observations. In effect, what is sought is a further informal route by which they can return to the fray and seek to persuade CTI that there are areas and issues of such centrality that they must be raised in the course of the prospective witnesses’ evidence. It’s a second opportunity, my Lady, to bend our ears.

You may consider it’s a sensible proposal because it is far better that issues which may become red lines for the Core Participants are raised with us and thrashed out in advance of the witness giving evidence, rather than being raised ex post facto and requiring further time and energy to be devoted to such Rule 10(4) applications as may then be made. So may we then give thought as to the mechanics of how this might work in practice.

The TUC reserves its position on this issue but I need again to emphasise that all Core Participants will be entitled naturally to make applications under Rule 10(4) for permission to ask questions of a witness.

Turning to the Scottish Inquiry, the Scottish Covid Bereaved and NHS National Services Scotland both raised the issue of the Scottish Inquiry and the absolutely proper need to avoid duplication. My Lady, both Inquiries are committed to minimising duplication in respect of investigation, evidence gathering and reporting, as is set out, indeed, in their respective Terms of Reference.

You have met, of course, your counterpart at the Scottish Inquiry and you will be continuing to do so and the Inquiry teams are close to agreeing and publishing memoranda of understanding. That will set out in terms how both Inquiries intend to minimise duplication because it will set out a framework for how they work together, how the secretariats and legal teams will meet and, specifically, how they will co-ordinate matters such as hearing scheduling, requests from material providers, disclosure and the calling of witnesses.

Also, because each Inquiry has its own Listening Exercise, both Inquiries have been working together to minimise confusion for the public, when sharing their experiences with the Inquiries, and the secretariats from both Inquiries are currently exploring the extent to which such experiences, which may be shared with each Inquiry, can be shared with the other and the obvious value to each other’s investigations and being able to supply that information to the other Inquiry. So the matter is well in hand.

In relation to the Listening Exercise – Every Story Matters, most of the Core Participants, my Lady, have restated their commitment to continue working with the Inquiry team to assist in its development.

The Covid-19 Bereaved Families for Justice Northern Ireland Covid-19 Bereaved Families for Justice group have expressed a certain lack of understanding of and confusion in relation to what the Listening Exercise or Every Story Matters exercise amounts to, so may I repeat that the Every Story Matters exercise is an essential part of your Inquiry. It supports the aims of your Inquiry because it is designed to, and will, gather individual experiences of the pandemic. It will analyse those experiences and the way in which, of course, they have been received to ensure that the conclusions are methodologically robust and then it will provide a set of comprehensive reports to the Inquiry’s legal process, so that they may be admitted into evidence and of course it will be disclosed to the Core Participants.

So this will assist you to obtain an even wider evidence base, not just about the human impact of the pandemic but also enabling you to reach robust findings and recommendations.

Attached to the counsel to the Inquiry note of 30 January was an annex, Annex F, and it contains a considerable amount of detail, including the extent of consultation with the Core Participants themselves, amongst others, the professional assistance being provided on a piloted basis in relation to research and analysis, communications, community engagement and, most importantly, the vital information which is that each and every person will be enabled to share their experience with the Inquiry through a web form or phone line assistance or on paper, also through community listening events and approaches, targeted approaches, which will be made in due course to be able to open up the line of communication with seldom heard groups and the digitally marginalised. All that will be supported by a very extensive media and communications campaign.

So a great deal of resource and time and energy has already gone into setting up this very extensive structure. More information will be provided in the coming weeks, including by way of a webinar.

Then, finally, in relation to the substantive topics, commemoration. Again, this is addressed in detail in annex F to the CTI note of 30 January. A series of meetings are in the process of being scheduled with the leads for the Bereaved Families for Justice groups and I think they anticipate meetings next week or very shortly thereafter to ask for their support in finding people who would be willing either to be filmed for the videos which, will form an integral part of the commemoration process, or to speak with artists to help the Inquiry team to shape the tapestry of which the annex talks.

Separately, my Lady, I believe that many of the Core Participants and members of the public have helped the Inquiry already with the issue of the commemorative art for the hearing centre room and we’re, of course, very grateful to them for their assistance.

My Lady, in summary, that matter and that important part of your Inquiry proceeds like the rest of it at pace.

The only other matters which I would like to raise with you are less substantive and more administrative. May we please have your permission to publish the Core Participants submissions and the CTI note. At the moment, of course, they are available to the Inquiry but they haven’t been publicly disclosed. In relation to the forthcoming hearings and the public hearing in Module 1, may I say that the public hearing in early June, if that is when you order it to take place, will be held at Dorland House, Paddington, W2.

Lastly, some of the Core Participants have sensibly suggested that there be a further preliminary hearing. We do have this in mind. If you order that one be held, further details will be provided, of course, in due course but there is the possibility, subject to your ruling and the availability of the various moving parts, to have a preliminary hearing at the end of March, around the 28th. If there is one, it will be online as with the current preliminary hearing.

My Lady, those are all the matters that I wish to raise with you by way of what I am afraid has become rather a lengthy opening, but I believe that they address all the matters which have been raised in the very helpful submissions that we have received from the Core Participants.

Lady Hallett: Thank you very much indeed, Mr Keith. I have been asked to take regular breaks for the benefit of the stenographer, who copes extraordinarily well with recording our words. It’s probably best, rather than interrupting Mr Weatherby’s submissions, if we break now. So I think we will break now. It’s 11.25 by my watch or thereabouts and we will return at 11.40.

Mr Keith: Thank you, my Lady.

(11.27 am)

(A short break)

(11.41 am)

Lady Hallett: Mr Weatherby.

Mr Weatherby: Good morning. Can you hear me okay?

Lady Hallett: I can, thank you, Mr Weatherby.

Submissions by Mr Weatherby, KC

Mr Weatherby: You will have seen from our written submissions that we’ve raised a number of issues, some of them have familiar themes. I want to underline at the outset, if I may, that the families campaigned very hard for this Inquiry to be established. They are unified by the imperative that everything must be done to make it as effective as possible and, so far as is possible, they want to play their full part.

In terms of the written submissions, as has been noted, they are joint submissions with the Northern Ireland team, with whom we’re working very closely. The UK group and the Northern Ireland group, we anticipate the other family groups, the TUC and no doubt others have been very concerned at the lack of clarity as to how the Inquiry intends to deal with the devolved issues in Module 1 or, indeed, how it could possibly fit within the timetable as had been indicated.

Unlike Module 2, of course, there’s no dedicated sub-modules and, in our submission, respectfully, the timetable appeared to be inadequate to deal with the UK matters, never mind the devolved ones as well.

Just to indicate, as far as we look at it in high level, those issues include how the UK Government and institutions considered preparedness with respect to the three devolved nations and jurisdictions and worked with the devolved administrations and institutions to that effect, but also how the devolved administrations themselves addressed their own preparedness duties.

Now, of course, Mr Keith has given some helpful additional information about those matters. For my part, it would be very helpful if we could have a list of issues which expressly sets out the extent to which and how the Inquiry is going to look at the issues – the devolved matters, both from the perspective of the UK Government and institution side but also from the three perspectives of the devolved administrations.

Given these are joint submissions, I have agreed with Ms Campbell, King’s Counsel, that she will deal with the devolution issues generally for our two teams and the Northern Ireland issues, in particular, of course, so I will move on from that having made those initial comments, if I may.

Can I address start date. Following our written submissions, we were grateful for Mr Keith for giving us notice what he was going to say today in terms of the hearing dates and the delay that he’s inviting you to take with that respect. For the reasons we’ve set out in the submissions, we agree. There is, in our respectful submission, no alternative to that.

I am quite happy to put on record that we don’t doubt for a moment that the Inquiry team has worked hard and diligently but the reality, as we hear today, is, as Mr Keith has mentioned, that we have a total 719 exhibits and documents disclosed and precisely three witness statements relating to Module 1. Mr Keith has updated us in terms of the evidence requests; they have gone up from 114 to 160 since the note was sent to us. That’s the Rule 9 requests, of course, and that number, as we’re given to understand, will rise still further and, as, again, Mr Keith points out, the fruits of those requests will obviously and necessarily inevitably lead to further additional requests arising out of them.

Recently, as Mr Keith has indicated, very significant evidence requests have gone out and, as I understand it, are continuing to go out to individuals rather than organisations and, therefore, the evidence-gathering stage of Module 1 appears to be quite far from completion and the disclosure, which I’ll come on to in a moment, is very much in the foothills.

We were indicated that we would have a witness list in the week commencing 6 March. We were not clear at all how it was ever thought that that could possibly be done, given the outstanding matters of evidence gathering. Of course, that’s 20 days from now. If the request to put the hearings back by a month is acceded to, of course that will provide another month and that will help but, in our submission, that will only properly help if the process is significant changed. I will come on to what I mean about that in a moment.

On the timetable proposed, we would have been asked to provide submissions on the witness list within “a short period” and then for lines of questioning to be provided within about a month; so to commence from 10 April.

Given that we’ve only a small number of witness statements, that isn’t the extent of the problem. We have, of course, the provisional scope document, the six paragraphs that’s on the website, but no list of issues. I have already addressed that on the specific issues of the devolved matters already this morning. That lack of any flesh on the bones of the provisional scope does limit our understanding of what is and isn’t going to be looked at within Module 1. We had been helpfully told that Professor Heymann’s draft report had been received by the Inquiry. The Inquiry had anticipated to disclose it quite quickly and we’re told we’ll now receive in the due course. We’re told that the other three expert reports will be received by the Inquiry only in early March. Again, we have a summary of their scope but we don’t have the letters of instruction and, therefore, we’re not clear about what to expect.

We’re told that on receiving the draft reports, the process thereafter will be disclosed to us but we understand that will give us a period of time to make submissions about what needs to be clarified, if anything, or indeed whether further issues arise. At that point, only then, will we be in a position, a real position, to know how much more work may need to be done by those experts or, indeed, whether there might be lacunae where we would be inviting you to instruct further experts.

We absolutely want the Inquiry to start at the earliest possible date but, on the current process, we’re not sure that another month is realistic. It’s much more likely to be realistic, in our submission, if the changes to the process are made which I will invite you to consider or perhaps reconsider now.

It’s been suggested by Mr Keith that the reason for putting the start date back is to make sure that Core Participants, including the families, are enabled to be fully prepared and that, of course, is a laudable aspiration but we make two points. Firstly, of course, the proposed delay is not due to any inaction on our part but that doesn’t really matter. The cause or the reason for such delay is not our main concern: getting the Inquiry right is.

Secondly, if the hearings are put back, everything possible, in our submission, should be done to engage with us, the Core Participants, to ensure that it can be effective at the new start date, and so that’s why in our written submissions we respectfully asked that there be a change of approach and I repeat that now. If the Inquiry, the families, other CPs, can’t be properly prepared by 2 May, why will the position be different at 2 June or perhaps even some time thereafter?

If we had now proper understanding of the evidence that had been requested, we’d be in a position now to raise where there were any perceived gaps, not having to wait a further period of a week or a month, three months, before disclosure is made of particular documents and statements and then having to look at matters now. If we had a list of issues, even if it’s a running list of issues that is being amended as it goes along, more than the provisional scope, we’d be in a much better position to know the extent of where the Inquiry intends to draw the lines on Module 1.

There had been discussion this morning not only about the devolved issues that I referred to but also about other issues of scope and what will be dealt with in terms of preparedness in Module 1 and what may be left to other modules. If we had the list of issues or a running list of issues now, then that would put us in a position to have proper dialogue with your team to work out how best to progress now and not in a week or a month or three months’ time.

Again, going back to the issue of experts, Mr Keith indicates that having letters of instruction for the experts is neither necessary nor sufficient. Well, I can agree with him on half of that. I would agree with him it’s not sufficient but it would be very helpful indeed to us to have the letters of instructions because we would be able to identify now gaps in what had been asked of the experts and, again, not next week when we might get Professor Heymann’s report or in a month or a month and a half’s time when we might get the other reports.

So that would provide extra time for us, in dialogue with the Inquiry team, to assist you in preparing to make sure that the extra time which we anticipate that you may allow for preparation here will not lead to yet a further delay when we get to that point.

I know these are recurrent themes. I don’t want to tax your patience but the disclosure of Rule 9s, letters of instruction to experts, a running list of issues now, would be likely to greatly assist all Core Participants in helping the Inquiry. It would also send the clearest of messages that the Inquiry welcomes the assistance of all Core Participants.

Specifically on the issue of Rule 9, we’ve made a particular point about the WHO and the Coalition for Epidemic Preparedness Innovations and the point about that was that the Inquiry has entirely appropriately instructed experts to look at the international processes but it didn’t appear to have sought factual evidence of what preparedness there was from the international perspective. I obviously heard what Mr Keith says about the WHO, although perhaps I’m allowed to be a little bit surprised at the WHO’s response to a request for such factual evidence, but that would make it more important, in my submission, to look for other international factual evidence about that preparedness link internationally. We certainly would repeat our submissions about the CEPI, that perhaps it would be appropriate to look wider than that as well.

At paragraph 8 of our written submissions, we have fully recognised, I hope, the practical issues for the Inquiry team in terms of the disclosure process. We obviously have a degree of experience in our team about these matters. We fully understand that it’s a difficult process to undertake.

The Inquiry has indicated that it has 42 draft or finalised statements. Obviously, it is processing them and they will be disclosed at some dates, plural, in the near future, we hope.

Objectively, we are late in the process for such a small number of witness statements to have been received by the Inquiry, never mind disclosed to us, and plainly the Inquiry is awaiting many, many more statements and documentation and, as I’ve already noted and Mr Keith has noted, it’s still sending out evidence-gathering requests. So there is a considerable distance to go before the Inquiry has gathered the material, never mind has undertaken the disclosure process.

There will obviously be disclosure filtering through late in the process. That’s always the case but it would be helpful to know what date the Inquiry team is focusing on where it will be able to say that it’s completed the bulk of Module 1 disclosure and it would be helpful if the Inquiry team could give that some consideration.

One particular factor I want to address that Mr Keith has raised, both in writing and this morning, that has slowed the disclosure process, is the redaction of witness names. As he has made clear, this isn’t on the basis of issues, for example, of national security or Article 2, and matters like that, but simply on the basis that some of the witnesses named in the statements and documents are junior staff.

We can well understand a submission that the identity of junior staff who are not decision-makers may be irrelevant or it may be disproportionate to put their identity into the public domain, but we’re struggling to understand why this is an issue prior to disclosure onto a secure platform only to those who signed the undertaking.

If this is a real issue at all, in our view is one which should arise at the later stage when a witness list is drawn up and plans are made for producing evidence. Two points arise from that, from our perspective. Firstly, the note and Mr Keith’s helpful comments this morning. It’s apparent that this issue, this redaction of the names of junior staff, is taking up a disproportionate and substantial amount of time of his team and the knock-on effect is it is seriously is impeding the disclosure of other material to Core Participants.

Secondly, we’re then being asked to play our part in the process by informing the Inquiry if inappropriate redactions are being made with the obvious difficulty that we don’t know what we cannot see and, with respect to this issue of the redaction of names in particular, then we say that’s the wrong way around and those seeking the redactions should be those that should make the running on that matter.

The solution with respect to this, is that where the only basis for redacting names is the junior status of the person, disclosure should be made without such consideration and then when the plans for adducing the evidence are made, then it can be seen which individuals are actually involved in that and the parent organisation can provide a list of persons to be redacted with the rationale for so doing. That’s likely to result in much shorter lists. We can see what is happening and, so far as I can see at moment, we may well have little objection if departments take a sensible approach.

I’m unaware of any other inquiry where the approach taken here has been adopted. I stand to be corrected on that but I’m not aware of this redaction of junior staffs’ name having occurred in other processes which I have actually worked within. I think it was an issue that was raised in the recent Partygate review but that was a different context and, again, so far as I’m aware, related to publication rather than disclosure to restricted persons with an undertaking.

Finally, with respect to disclosure matters, I’m asked to raise the issue of the IT platform. In fact, this was an issue we raised before any platform was procured by the Inquiry and I note that other Core Participants are raising this, this morning. The platform which is being used has limited functionality. I think that the companies, plural, involved would baulk that idea that it’s the industry standard. What functionality Relativity has is, in fact, restricted and my team has already tried, but unsuccessfully, to persuade the Inquiry team to allow Epiq to give us some more functionality, which is available at very limited cost, we’re given to understand, which would at least ease the process from our perspective.

It is slowing our ability, hampering our ability, to deal with the disclosure as it comes in and that will be exacerbated, given the apparent rapid increase in the disclosure to be made. Members of your team have worked with the other platform that’s being mooted. We’re not asking you to jump ship onto another platform. The last major Inquiry I was instructed in, in fact, had both Relativity and Opus used by the Inquiry team as well as the CP teams. It’s a system with greater functionality which is being used in a number of other major inquiries and major inquests and we believe, overall, it would have a significant cost saving because the greater the functionality the easier and the more quickly the disclosure can be dealt with.

We would ask that that issue is revisited.

In terms of Parliamentary privilege, this is an issue that was raised by Mr Keith in his note and a series of propositions have been made. Many of them we unreservedly say are right and we did do – we set that out in writing, but some of them, we say, go too far and we agree with Mr Keith that the approach that he’s indicated, in terms of the taking of witness statements, taking account of Parliamentary privilege, is a helpful one. For example, in paragraph 27(a) of his note, it’s proposed that where a witness has said something relevant in Parliament covered by Parliamentary privilege, the Inquiry will seek a witness statement covering the same material and that would then obviously not be subject to Parliamentary privilege. That, we say, is a sensible approach to take.

However, we do illustrate the problem through that same paragraph. If the witness is asked to do that and gave a different answer to that, which he or she had given within Parliamentary privilege, would the Inquiry then have to ignore the discrepancy? On CTI’s note, it would appear that that would be so.

In our submission, that’s unlikely to be correct and would lead to a very unsatisfactory result that you would have to ignore the difference between what the witness said in the Inquiry and under privilege, whilst there would be no problem, for example, with The Times or the Daily Mail reporting from the gallery about the inconsistency and there were the potentially unreliable nature of that evidence.

From the discussion by Mr Keith this morning, he has raised a number of no doubt important points, further to his propositions in the note and our response in our written submissions. There are a number of points that he’s raised, which we would most certainly have an answer to. For example, the 1999 Parliamentary Committee considered whether, in fact, to enact a statutory application of Parliamentary privilege within the Inquiries Act proposed legislation and didn’t do so. That could play either way in the discussion.

The fact that the Chilcot Inquiry apparently did consider matters under Parliamentary privilege would potentially indicate that an inquiry can look beyond the privilege because Parliamentary privilege can’t be waived. So the fact that it was a non-statutory inquiry is unlikely to make a difference. The public law point that Mr Keith made, the point about public law, is it may not determine generally – although occasionally it does – liability but it is still litigation, in the way that a public inquiry isn’t.

So although no doubt those are important points that need to be looked at, it probably illustrates the need to actually look at them in a more organised way from each side through written arguments and therefore I think my submission is that we would persist with our point that any Core Participant that would wish to support the propositions, the extent of the propositions, should be invited to reduce those to writing with the supporting law. Then we would be in a position to give a full and proper response in the traditional way with a skeleton argument in reply.

Whether that is something that needs to be done immediately, I’m not as sure but it does appear from the discussion that’s occurred this morning that there are real issues here and ones that are likely to arise and, therefore, I respectfully ask that it should be timetabled so that it can be argued at some point.

In terms of experts, we reiterate the points already made regarding timetabling and our ability to assist the Inquiry now rather than later. With respect to the specific issues of structural discrimination, this is an issue, a big issue, with the families. The issue we have is that there is a body of evidence and a widespread concern about the disproportionate effect on the pandemic on certain communities, particularly black and brown ethnic communities, and the question arises: were known issues, structural issues, structural discrimination issues, properly and sufficiently addressed in preparedness for a pandemic or not?

Now, Mr Keith makes the point that there is a wide breadth to this sort of issue. That’s precisely why we say that it can’t sensibly be dealt with within a general drawing together of health inequality experts and why it needs to be addressed in a dedicated and more specific fashion.

The structural issues – we’ve set some out in the written submissions, so I won’t repeat those – that these are matters of enormous concern, they do very, very much start with preparedness and, therefore, although no doubt they will be issues that will be raised with a number of modules, if not all modules, in our respectful submission they are ones that will not wait until later and it is a major and complicated issue which requires dedicated experts’ attention and we would respectfully ask you to look again at that and look to instructing experts that will deal with it not simply as part of the health inequalities expert evidence.

May I make a point on that, that I’m in no way impugning the expertise of Professors Marmot and Bambra, and I am aware that some of their work more generally does include issues of racial inequalities, so I’m not in any way trying to impugn their work. We’re simply making the submission that these are issues that need to be looked at in detail on their own.

In terms of evidence proposals and Rule 10, the CTI note implied to us that the limited time set aside for Module 1 was being determinative of the question of witnesses and the questioning of witnesses. I am greatly reassured by the comments of Mr Keith this morning and we will revisit that in detail. We will obviously be aware of the imperative of the Inquiry being dealt with efficiently, but we will be persisting with our submissions that having more voices in the room on a proportionate and no doubt time-limited fashion is a matter which not only enhances the ability of the Inquiry to look at witnesses but it also draws in the Core Participants in a collaborative fashion to make the Inquiry work more effectively and, therefore, we will be making those submissions further. But we are reassured by the comments made by Mr Keith.

We note the use of the word “presumption” and we repeat what we said in writing that the only real presumption in Rule 10 must be that there’s a presumption that all relevant questions are asked, whether by counsel to the Inquiry or indeed by others.

In terms of witnesses and the timetabling, I’ve already addressed some of these matters but I want to add three points. Firstly, so far, there’s been no mention of selecting family members with experiences which may illustrate the systemic effect of preparedness failures to give evidence within Module 1. We note, in particular – and no doubt Ms Campbell will refer to it – the material included in the Northern Ireland group’s Rule 9 response but I will leave that to Ms Campbell, if I may.

Picking up, if I may, my earlier submissions on structural discrimination as an example, it’s our understanding that there were no measures to risk assess frontline healthcare workers which included an assessment of the likely disproportionate effect on people from particular ethnic backgrounds, and another might be the effect of a failure to have advance planning for the necessity to isolate patients coming into care homes or to address the obviously foreseeable problem of Covid being brought from care home to care home by agency workers.

These are matters of which family members may well have important direct evidence. Of course, it may be evidence that relates to later modules as well but we would invite you to ask the team to discuss the calling of a proportionate number of family members within Module 1 to address relevant issues.

The second issue is we’ve liaised with the TUC legal team and we support their submission that a witness should be called to deal with the relevance and impact of austerity on preparedness.

The third point is that we ask you to review what we have submitted is a considerably inadequate time estimate for Module 1 but, again, we have been reassured to some extent by the helpful comments of Mr Keith this morning that, indeed, he is inviting you to look at that as well.

May I add a caveat to that? From the outset, we’ve asked you to have the timescale of the whole Inquiry clearly in mind. We’re not inviting you to conduct the Inquiry without a clear eye on expedition or letting it get out of hand. However, we do say that preparedness should be a substantial part of the overall Inquiry. It constituted something like a half of the draft Terms of Reference that we submitted on behalf of the families at the outset. How prepared the UK in its constituent parts was for a pandemic is a necessary precursor to examining the other side of the coin: how appropriate were the responses? It’s essential that preparedness is looked at comprehensively, given that is where your recommendations are likely to be focused, preparing to prevent or mitigate the next time around.

A snapshot or a superficial approach certainly will not do with respect to preparedness. So we would invite you to quite considerably increase the timetable or the timetabling for Module 1.

In terms of opening and closing statements, we note the comments made by CTI. We have no issue with case management and time limits. We just ask that they are subject of discussion rather than announcement, so that we can have some input into those matters.

Can I address the Listening Exercise or the Every Story Matters points. We’ve made quite a number of submissions about this subject. It is a subject which is of very obvious and clear concern to the families and we have two real points to make. As Mr Keith indicated, we have noted in our written submissions that there remains considerable uncertainty, confusion even, regarding this exercise. The latest update tells us the Inquiry has worked with Ipsos and M&C Saatchi to progress the design of the project but it doesn’t explain what that design is.

It asserts that the Inquiry’s looking to procure “several new contracts” to deliver the next phase but it doesn’t explain what the next phase is. We’re told it’s likely to include “research and analytics communications and community engagement suppliers”. We’re not told what experience or expertise is to be required of those suppliers.

We’re told that the Every Story Matters project aims to offer an open and inclusive way for people to share their experience and that the Inquiry is looking for different ways for people to share their story, but the latest update appears to be largely aspirational: what they are looking to do at some point in the future. What the families need, with respect, is a little bit of concrete and they need to know exactly what the plan is, how they are to access it, what the support to them will be, who precisely will interact with them, what will be the experience and training of those persons, what does the Inquiry mean by “trained researchers”, what experience will the research companies have, how will they be quality controlled, how will the Inquiry ensure that “conclusions are methodically robust”?

This is a project which has been in the making for many, many months already. It’s an exercise which will, of its nature, be extremely difficult for bereaved families, and extremely important if it works, and what is needed is clarity and certainty, and we submit that the project should be reduced to writing, to a clear plan setting out exactly how the process will operate and how families and others will be asked to engage with it. It should set out who will be doing what, their training and experience requirements and the timescale. The sweeping statements in the updates, no doubt well meant, but they are not fully informative.

The second point I want to raise about the project is the continuing anxiety regarding the companies involved and there is reference in the update attached to the CTI note to seeking assurances from any potential supplier that they declare conflicts of interest and how they can avoid conflicts of interest if they arise. It is well known that these are matters of acute concern to families and only last week there was further media reporting of companies said to be involved, and the families seek more reassurance than that those bidding for this work will give assurances that there are no conflicts of interest.

I give one example: the openDemocracy website last week cited the two companies that they say have been contracted to the Inquiry and they say that the Inquiry has confirmed that, Saatchi and a company called 23red and the openDemocracy website asserts that both of those companies had contracts to work on the Government Covid response, as well as other Government work.

Another website asserts that 23red actually worked from the Cabinet Office on that work. I’m not commenting on whether those accounts are correct or indeed whether there’s an actual conflict of interest. But there is considerable unease about this and what we seek is a clear indication from the Inquiry as to it using companies which have undertaken what might reasonably be perceived to be a conflict of interest and indeed for companies contracted to do inquiry work to make a public statement concerning any work they have done that could be perceived to be in conflict.

The consequences of not taking a robust and transparent approach to these issues are really quite simple: less families will be prepared to engage and the whole exercise will have less utility and less credibility.

Finally, in respect of commemorations, I’m not going to repeat any of our previous submissions on this subject. You have heard them already , probably once too many, but we do note the current intention to develop video content to be played at the commencement of Module 1. We’re ready to help, we’re ready and willing to engage about this, if we’re informed clearly of what that plan is. The update asserts that the Covid Bereaved Families for Justice has been asked to assist. We’re a little confused by this. There was a consultation meeting in November but we’re unaware as to any further contact about that particular part of it.

That’s no matter. It can be rectified. We ask that it is. Subject to what the plan is, the families want to engage and assist with those parts of the process.

Unless I can assist further, those are the submissions I wanted to make this morning.

Lady Hallett: Thank you very much, Mr Weatherby. I’m very grateful obviously to you and to those whom you represent. As you acknowledge, it’s a difficult balancing exercise to draw between timeliness and effectiveness but I do understand your concerns and I undertake to consider very carefully the submissions that you have advanced today and in writing. Thank you very much.

Mr Weatherby: Thank you.

Lady Hallett: Next I think we have Ms Campbell, King’s Counsel.

Submissions by Ms Campbell, KC

Ms Campbell: Thank you, my Lady.

My Lady, by way of preliminary observations, I wish to address you briefly on the group whom I represent and the unique situation in Northern Ireland, in brief terms.

Lady Hallett: Just before you do Ms Campbell, I’m sorry to interrupt, I don’t know if you intended to be seen on screen but I can’t see you.

Ms Campbell: Oh. Well, if it helps, I can see myself, which I can tell you it doesn’t, but I can certainly see that my camera is working.

Lady Hallett: I’ve got you.

Ms Campbell: Sometimes it helps just to toggle a little bit longer. Thank you, my Lady.

I was opening to indicate that my observations will address in brief terms the nature of the group whom I represent and the unique situation that prevails and that prevailed in the North of Ireland. I’m not going to address every single item on the agenda and, to the extent that I do not, it doesn’t mean that items have been overlooked or that issues or concerns are not shared with those that my Lady has just heard from Mr Weatherby, King’s Counsel, or indeed that there are no submissions to be made.

For the purposes of this hearing, when it comes to issues such as Parliamentary privilege, when it comes to issues such as the disclosure management platform and, indeed, the listening project that Mr Weatherby has just addressed we very much adopt wholeheartedly both in written form and the oral submissions that my Lady has heard this morning and they won’t, as it were, benefit from repetition.

My Lady, as with the UK Covid Bereaved Families for Justice, the group whom I represent, together with others in Northern Ireland, has long campaigned for a full and frank public inquiry into the UK Government, the Northern Ireland Executive and public authorities’ handling of the pandemic, with a significant focus on preparedness and decision-making and funding at all levels during the pandemic. I can reassure you, my Lady, that the Northern Ireland families remain steadfast in that aim and in that ambition and remain willing to assist the Inquiry to the greatest extent possible.

The Northern Ireland families represent a very broad demographic of Northern Irish society, by its very nature, those being individuals and families who have come together, united really by bereavement. The existence of this group, of course, postdates the onset of the pandemic but that’s not to say that their experience postdates the onset of the pandemic exclusively. The activism of the Northern Irish families was directed at key decision-makers in the North of Ireland and indeed beyond from a very early stage of the pandemic, in the hope that deaths could be avoided, in the hope that lessons could be learned as soon as possible to prevent other families from suffering as they did.

So a great many of our members engaged actively with decision-makers from the outset. Those included: senior officials in the Department of Health; arm’s length bodies; the public health agencies; RQIA, the Regulation and Quality Improvement Agency; and, indeed, senior politicians, both locally and in Westminster, the Office of the First Minister, the Deputy First Minister and the devolved ministers.

So the point that we make is that it should not be assumed, and I don’t say that it is, but it should not be assumed that because our group came in to being after the onset of the pandemic, it cannot assist with issues around preparedness. Of course it can. The members of the group collectively, and some individually, have a great deal of in-depth knowledge and experience of how the complex Northern Irish health and social care systems operate, which of course are distinct from Westminster, and continue to operate in practice, and that knowledge has been acquired both prior to and indeed during and since the pandemic.

Of course, it’s striking that a very significant proportion of the Northern Irish families are made up of bereaved families who represent some of the most vulnerable in our society, including those who were elderly or those who are already in poor health or who were reliant on care assistants or who were requiring other essential healthcare interventions. So those whom we represent really were the voices of the deceased long before the pandemic struck and continue to have a great deal to say about the circumstances that prevailed at the time that the pandemic struck and indeed beyond.

So, my Lady will have received in recent weeks a detailed Rule 9 response that has been prepared by our group leads on behalf of the wider group. The aim and the hope of that Rule 9 is to set out in some detail how it is that Northern Ireland is different but also to remind the Inquiry and to remind your team, my Lady, that our family members have a significant amount to offer to this particular module, and the point that Mr Weatherby has made on our behalf, and indeed on behalf of the wider group, that the Inquiry should be looking to family members to see whether witnesses are available from within our group to assist and to put into proper context issues about preparedness, is one that is well made and that we certainly stand ready to assist with.

My Lady, I have made the point that Northern Ireland is unique and we very much believe that it is. It’s distinct, of course, from Scotland and Wales and England geographically and politically. It’s distinct also as a result of the experiences of, and indeed the engagement of, our civil society and, as such, the preparation for this pandemic and indeed for future pandemics can’t be aligned easily or at least entirely by experiences emanating, be it from Westminster or Cardiff or Edinburgh. Emergency preparedness in the North of Ireland is a devolved issue politically and a demarcated issue geographically. Both should be a matter of concern for this module.

It is reassuring, if I may say so, to hear Mr Keith this morning indicating that those issues have been heard. I make the point, and I don’t make it critically, but really that is the first occasion that we have heard publicly that our voices are being heard. But that issue of emergency preparedness being both a devolved issue politically and indeed a demarcated issue geographically is a matter first of concern. Firstly, because of the lack of any devolved legislation on the civil contingency planning and the difficult, if I may say so, political environment in which our devolved institutions operate and, secondly, as you have heard at previous preliminary hearings, because the island of Ireland geographically is a single epidemiological unit.

It is also right to observe, as has been observed this morning, that Northern Ireland, for a significant period before the pandemic, was unique, certainly for three years immediately prior to the pandemic, there was a vacuum of governance with no functioning executive and one concern of our members is that this has contributed to a failure to legislate to plug the gaps in statutory duties for civil contingency planning. Where entities, where bodies have power but not duties to prepare for and to respond to emergency situations, such as a pandemic, then it would ordinarily fall to a minister as being responsible for significant or controversial decisions about how to exercise those powers. But where there are no ministers, and no Assembly, there’s a lack of democratic oversight in relation to how decisions are being taken and taken, in particular, for preparedness and in due course for response.

So, my Lady, making these general supervisions is really to remind the Inquiry that the lived experience of Northern Ireland families and our membership must be considered because that lived experience within the context of Northern Ireland provides critical information and context for you in considering the issues to be addressed in Module 1.

I make clear that our members stand ready to applaud and to identify positive examples of preparedness and to expose areas of concern and to demonstrate where there were features of preparedness for the pandemic that undermine any assertion or any conclusion that there had been adequate planning or effective participation to implement plans and resilience in practice, and where there remains much to learn.

The reality is that the Northern Irish families are Core Participants in your Inquiry, my Lady, not only because of the magnitude of their loss but also because they represent an enormous repository of information, of knowledge and of shared experience that is of value to this Inquiry and, as a group, they have stood ready for some considerable time to contribute, to respond and to participate.

Really, we encourage the Inquiry, my Lady, through your team, to seek to harvest that information from our group, to seek to learn the knowledge and to share the experience in order to positively contribute to this process, not only in the course of the hearings in Module 1 but at this stage in the course of the preparation for those hearings because, without the voices of the Northern Irish families, this Inquiry when it comes to considering the issues, both in Westminster and in the devolved administration, we submit will be significantly the poorer.

Yet whether Module 1 commences in ten weeks’ time or in 14 weeks’ time depending on your decision today, my Lady, there remains a lack of clarity from our perspective about how and by what means preparedness in Northern Ireland is really to be addressed in Module 1. We are grateful for the insight that we have been given in the course of this morning’s hearing. We hope that it represents the beginnings of clarity and further discussions but, of course, when it comes to Northern Ireland within Module 1, disclosure is in its infancy. Witness statements are scant to non-existence and it’s not clear to what extent, if any, your experts will report on Northern Ireland-specific issues directly.

We are told that we must wait until all those reports and the witness statements have been received and considered and that will be our opportunity to contribute but, as Mr Weatherby has pointed out and with which we respectfully agree, allowing input only or mainly on receipt of witness statements, on receipt of expert reports, and when witness lists are being drawn up, and then potentially only in a limited way, is an approach which we respectfully submit is a flawed one at this stage and that reflection ought to be given to changing it.

May I address this by way of example through the Rule 9 requests because we reiterate the call for transparency and for clarity in that process and for disclosure of the detail of what have been recognised to be, this morning, both numerous and complex Rule 9 requests. But to know the detail of what has been requested of a Government body or of an individual or of an agency, particularly given that these are complex requests, would enable our engagement in ensuring not only that the correct requests have been made of the correct agencies but also that the detail of those requests is sufficient and to know the detail of what has been requested would enable us to have a better interpretation of the information that had been provided. When you know what has been asked for and you can compare that with what you have received, the recipient is better placed to judge the quality of the response and the fullness of the response.

To know the detail of what has been requested would also enable us to have proper consideration as to whether further questions or further issues or further follow ups ought to have been generated as a result of what is in that particular document.

We note by way of example in the helpful appendices to the CTI note, that there appear to have been a different ambit or certainly a different extent of consequences posed to the Scottish, Welsh and Northern Irish Governments. We don’t know why that is and why it is that in relation to Northern Ireland the questions posed or the topics that we have been given are narrower than to the counterparts in Scotland and in Wales. We can’t meaningfully contribute to that process, we would respectfully submit, unless we know what has been asked, of whom and in what detail.

My Lady, as if to further illustrate that point, we understand that our Rule 9 response, on behalf of our group leads, has prompted or indeed is likely to prompt further requests from other bodies. My learned friend, Mr Keith referred to this morning the emergency preparedness groups of Northern Ireland, who will now receive Rule 9 requests and that’s, of course, welcome news. It is reassuring that the issues that we have raised in our Rule 9 are being considered and indeed acted upon. But it’s simultaneously, if I may say so, concerning that such requests are being issued at this juncture and that they are being issued without our meaningful input, leaving limited time for receipt before the hearings commence, be it in May or indeed in early June.

So we would join with Mr Weatherby in asking you, my Lady, and your team to engage further with us in this process and to recognise the value that Core Participants can bring to the preparation for the hearings and not just to the hearings themselves being part of the process and understanding the ambit of requests. Shaping and contributing to those requests would best ensure that you, my Lady, obtain the evidence that is most beneficial to this Inquiry.

My Lady, linked to that is the issue of expert witnesses and I can be relatively short, given the information that we have received this morning. But we observe again, as we’ve done in written submissions, that there doesn’t appear to be any Northern Ireland-specific expert witness. Rather, Northern Ireland is to be considered as part of a report from Professor Marmot and Professor Bambra in the context of their opinion on health inequalities in the UK and the devolved administrations. Of course, we look forward to receipt of that report and we were told this morning that that will be towards the end of March. But we do question at this juncture whether consideration of Northern Ireland as a chapter or a section or a theme of a report will really be sufficient to address Northern Irish preparedness, given the complexities of the region, both geographically, politically and otherwise.

We can only raise that as a question at this stage, of course, because we have very limited understanding of the remit of those experts and their instructions. We don’t know what they will have to say and we will not know for perhaps another six weeks. So therefore, again joining with Mr Weatherby, we reiterate the call for clarity as to their instructions. We reiterate the request for disclosure of their letter of instruction, which we observe really is a common and reasonable request, so that we understand not only what they have been asked to do but that we have an idea of the materials that they are relying on in reaching their conclusions whether those materials have been identified by the Inquiry or as part of their expertise and, very importantly, so that we can have a sense of whether the Inquiry in Module 1 will have sufficient expert evidence in order to fully understand preparedness in the Northern Irish context.

My Lady, in relation to Rule 10, I again adopt the submissions that Mr Weatherby has made. It is reassuring to hear this morning a greater degree of clarity in terms of the opportunity at least for families’ questions to be posed by families’ representatives. We make the point on behalf of those whom I represent that they request that their voices are heard and it will be an important part of your function, my Lady, given the need to address preparedness in the devolved administrations, that regional accents are heard as part of this process asking questions on behalf of and posed to those whom they either directly represent or on whose behalf decisions were being made.

My Lady, as to timetable, the recognition that this Inquiry will not be ready to start in May is – “welcome” is perhaps the wrong word but it’s certainly understood and we respectfully agree. May I finish with three things that we submit are required to ensure that the timetable is met for the start of June, if that is to be your decision, but also to ensure that there is a maximum use – sorry, a maximum effective use, I should say, of the time that is available from whenever we start until the point at which Module 1 is concluded.

The first request is that there should be no slippage in the timetable for disclosure, or witness lists, or expert reports for lists of issues, and we say that recognising the enormity of the task that is in hand in terms of preparing disclosure and in terms of ensuring that witness lists and the like are complete.

Already this morning there is a slippage from early to mid-February for receipt of the first round of expert reports now to the end of February and indications maybe that there is some further slippage in terms of identifying witness lists from 6 March until a point beyond that. Recognising the enormous pressures that everyone is under, we would urge that if there is to be a four-week or thereabouts adjournment in the start date that that is not a four weeks’ or thereabouts slippage in the timetable for disclosure.

We really must have all the available information and disclosure as soon as possible if we are to be ready for the start of June.

Secondly, we reiterate the call for a meaningful preliminary hearing towards the end of March and, in order to be meaningful, really connected to my first point, there can be no further slippage in terms of disclosure, so that by the end of March we are as fully briefed as we can be with disclosure, witness statements, and so on, so that we can assist you in identifying those important issues as to the evidence that the Inquiry is going to hear in the course of this module.

Thirdly and finally, really reflecting what I have already said this morning, that we do invite consideration or reconsideration on what meaningful participation of Core Participants is in preparation for the hearings and not just in the hearings themselves. We respectfully, my Lady, ask you to consider the points that have been made on behalf of the Northern Irish families and consider whether a change of approach in terms of engagement in a meaningful way in preparation is called for from today.

Lady Hallett: Thank you very much, Ms Campbell. Obviously I will consider very carefully all the submissions you very helpfully made. Thank you.

Ms Campbell: Thank you.

Lady Hallett: Ms Mitchell, King’s Counsel.

Submissions by Ms Mitchell, KC

Ms Mitchell: Is my Lady able to see me?

Lady Hallett: I am.

Ms Mitchell: Grand.

We’re grateful to senior counsel to the Inquiry for providing a detailed note which relates to a number of procedural issues that we were keen to have clarified and, as such, the remaining submissions today will be relatively short.

First of all, if I may deal with the postponement of the hearing date. The Scottish Covid Bereaved are of course very keen to make progress in hearing evidence. However, not at the expense of having full disclosure which will allow meaningful participation in the process. Therefore, given the relatively short period of time which is envisaged to put back the hearing, there is no objection to this course.

If I may move on then to briefly discussing the Rule 9, which has been submitted on behalf of the Scottish Covid Bereaved. On 3 January 2023, the Scottish Covid Bereaved received a Rule 9 request from the Inquiry. This raises a number of important questions in relation to pandemic preparedness, the response to which we hope the Inquiry will find helpful.

There will, of course, be further and more detailed questions to be raised as the disclosure continues. We confirm that if there are organisations or individuals who do not appear in Annex A but in relation to whom there is reason to believe that the issuing of a Rule 9 request would be beneficial to Module 1, then we shall advise the Inquiry immediately.

Moving on to the issue of disclosure, having heard from senior counsel to the Inquiry this morning, we do not underestimate the amount of work it is taking to obtain and process and disclose the relevant documents to this Inquiry.

We note that in senior counsel’s written note, at paragraph 21, the Inquiry’s ideal scenario is that materials be disclosed in an organised and collated way but, in reality, a balance has been struck to ensure documents are being disclosed as soon as possible. For our part, there is considerable additional work being done to try and collate relevant documents from disclosure but this is a time-consuming process. We imagine that other Core Participants are having the same issue.

For our part, we consider the balance is best struck by the Inquiry, where possible, delivering disclosure in organised and collated tranches, even if this means taking longer. Having individual documents at an earlier stage without proper context means it is likely that those documents need to be revisited to provide context in due course when further disclosure is made. Having this work done at source means it’s likely that Core Participants will have less work to do and more likely to be prepared in time for the forthcoming hearings. We would ask that consideration is given to try to do this, whilst acknowledging the huge amount of work that the Inquiry team are already doing to try and process disclosure as soon as possible.

Moving on to the issue of Parliamentary privilege, it is important to the Scottish Covid Bereaved that Parliamentary privilege does not impinge upon the work of the Inquiry and that the Inquiry is not inhibited in fully exploring the circumstances in which decisions were taken and actions were carried out by politicians and others in relation to pandemic preparedness.

We note the process by which counsel to the Inquiry will address the issue of Parliamentary privilege and, as he’s previously noted, we consider this to be a sensible course which will allow issues covered by Parliamentary privilege to be addressed in statements which do not have the same restrictions as the doctrine of privilege.

In addition, we are comforted by senior counsel’s assurance that if a problem arises in relation to eliciting evidence, this matter will be revisited and, if in due course there are any such difficulties, we would wish an opportunity to make submissions on that.

Examining witnesses. We are grateful to counsel to the Inquiry for an indication of how he proposes to provide Core Participants with, in effect, witness packs with proposed evidence. We consider that this will be a helpful method for ensuring that the issues and accompanying submissions of the Scottish Covid Bereaved can be flagged up, and it will minimise duplication of work.

As has already been alluded to by senior counsel to the Inquiry, we would ask that after submissions have been made by Core Participants, counsel to the Inquiry responds confirming whether they consider that such an issue will be raised or not and, if not, we can, as he suggests, bend his ear as to why we consider such lines of questioning are necessary. This informal method has the benefit of allowing a degree of flexibility which may obviate the need for a formal process and we would ask that the Chair give consideration to this.

The hearing dates and CP status. When the Inquiry provides dates for hearings and CP status, we’re requested not to disclose these until they are made public. In relation to the dates for hearings, this is proving difficult on a practical basis for those who wish to make arrangements to travel or be free to watch online or even tell family members what is happening. In relation to the grant of the CP status, the inability to confirm this leads to similar problems. We do not understand the need for such a restriction.

If dates are provisional until announced, this can have been made clear and the CP status of any person or group once granted or refused does not seem to be a matter which requires any secrecy. Can the Inquiry give consideration into moving such restriction? From experience, the failure in other inquiries to provide information such as dates, et cetera, can lead to a reduced confidence in the process by families.

Turning now to co-operation with the Scottish Inquiry, the Scottish Covid Bereaved, I suppose, are in a unique situation given the fact that we also have an inquiry going on in Scotland. The Scottish Covid Bereaved group is keen to understand what, if any, update there is on the working relationship between the two inquiries, including such issues as: whether agreement has been reached that the inquiries will not sit at the same time; whether disclosure will be an entirely separate process or whether or not there will be any collaboration in relation to document and gathering; whether the Listening Exercise or Every Story Counts will be two entirely separate entities, in practical terms meaning that the Scottish Covid Bereaved would tell their story twice.

Since the last hearing at the preliminary hearing, the Scottish Covid Bereaved understands that Lord Brailsford and the Chair have met to discuss their working relationship and the group would be grateful for any updates that are available.

Memorialisation. We note the form of the memorial as a 15-panel tapestry with each panel being made in collaboration with an artist and particular community. The Scottish Covid Bereaved would be happy to input into such a project. We note that, as requested, the memorial will be movable so that it can be shown in Scotland and that consideration is being given to it also being able to be viewed online.

Further, we note that the video content to reflect the hardship and loss the pandemic caused is being made for the opening of Module 1. The Scottish Covid Bereaved welcome the opportunity to be involved in this process.

My Lady, unless there’s anything further, those are the submissions for the Scottish Covid Bereaved.

Lady Hallett: Thank you very much, Ms Mitchell – as helpful as ever – and I undertake obviously to consider them all very carefully.

One thing I can say today in relation to the Scottish Inquiry, I can confirm that we have an excellent working relationship with the Scottish Inquiry team. I’m meeting Lord Brailsford again next week in person and we hope that we’ll shortly be able to publish the memorandum of understanding, which I hope will answer some of the questions that you’ve have raised, but obviously we’ll try to make sure that the people of Scotland know which inquiry is doing what and also that people who receive requests for documentation and the like don’t have too great a burden placed upon them.

So thank you very much for what you said and I will consider everything, as I have said. Thank you.

Ms Mitchell: I’m obliged, my Lady.

Lady Hallett: Now, we have left Mr Lloyd Williams and Ms Gallagher and I know the stenographer has been working hard.

Could I ask Mr Williams, if you’re there, roughly how long you think you will be, and Ms Gallagher after that the same question, to decide whether we continue now or whether we break for lunch. Mr Williams, can you give me any idea? Don’t worry; I’m not committing you to anything – just a vague idea.

Mr Williams: I can give you an estimate of 20 minutes, my Lady.

Lady Hallett: In which case. I don’t need to ask Ms Gallagher because I think it is better that we break now, you won’t feel under any constraints of time, and we will come back please at 2.00. Thank you, Mr Williams.

Mr Williams: My Lady.

(12.57 pm)

(Luncheon Adjournment)

(2.00 pm)

Lady Hallett: Mr Williams, please.

Submissions by Mr Williams, KC

Mr Williams: My Lady, I represent Covid-19 Bereaved Families for Justice Cymru. I’m going to refer to them, for reasons of brevity, as “Cymru Group”.

My Lady, we were greatly assisted by the submissions made by the representatives of the Core Participants who have spoken so far, in particular by Ms Campbell on behalf of Northern Ireland.

Lady Hallett: Mr Williams, sorry to interrupt you. I can’t see you at the moment. I don’t know if your camera’s turned on, or are you being shy?

Mr Williams: Never known to be shy.

Lady Hallett: Yes, I can see you now, Mr Williams. Thank you. Sorry to interrupt you.

Mr Williams: My Lady, I was just referring to the assistance we found from Ms Campbell on behalf of Northern Ireland. The points that she was making there are similar points to which we have in our area for Wales. We get the impression of some of the documents, which I will just take you to very shortly, that Wales is viewed as an adjunct to the UK Government, that what applies to England applies to Wales, with just a bit of tweaking here and there.

That emerges from the provisional outline of scope in respect of Module 1. There are six matters that the module is going to examine. The first one is a medical issue and no direct relevance to these submissions. The second one is the Government structures and specialist bodies concerned with risk management and civil emergency planning, including devolved administrations and their structures. We would have thought that there would be reference to “devolved governments”, rather than “administrations”, so as to accord the Welsh Government the status is deserves.

Thereafter, from paragraph 3 to paragraph 6 there’s no reference at all to “devolved governments” or “administrations” or anything else. There’s one reference to “Government bodies” in paragraph 5, economic planning by relevant Government bodies, but it only refers to “Government”. It doesn’t make it clear whether it’s the UK Government or whether it also includes the other devolved governments.

It would be very helpful to have some clarity over Module 1, the scope of it. We appreciate, my Lady, that at the moment it’s provisional but, nonetheless, this question of including Wales as a separate institution, separate Government, is very important to those I represent. What they wish to avoid is the UK Government being the primary focus of everything that happens in all the evidence and all the documents, with perhaps an afternoon or a day dealing with Wales. Wales deserves more than that, my Lady. It’s a separate part of the UK.

Although Wales receives funding from the UK Government, responsibility for health and social care has been devolved to Wales since 1999; so the fact that I’m making these submissions in the light of the material you already have shouldn’t come as a surprise to anyone.

Wales has its own healthcare system, NHS Wales is comprised of local health boards, NHS trusts and Public Health Wales. Relevant offices and agencies, such as the office of the Chief Medical Officer and Healthcare Inspectorate are specific to Wales. This means that the key decisions made in Wales in relation to the Covid-19 pandemic were largely separate to and often quite different from those taken by the UK Government.

Therefore, the Welsh Government had responsibility for planning for a pandemic, including forecasting and the learning from past simulation exercises and have responsibility for producing emergency plans. Further, the Welsh Government is responsible for public health services in Wales. The organisation responsible, Public Health Wales, is separate to UKHSA.

The Welsh Government also has responsibility for maintaining healthcare more generally in Wales, which lays the groundwork for pandemic resilience.

The Cymru Group considers that NHS Wales’ infrastructure was not fit for purpose by Covid-19, meaning that when the pandemic started to take effect in Wales the health and social care services were insufficiently prepared and not resilient to the challenges faced. These are all matters that Cymru Group wishes to explore in Module 1. As such, we ask the Chair to consider when finalising the scope of Module 1, that the scope will ensure sufficient scrutiny of the decisions taken by the Welsh Government as to and to the extent of preparedness in Wales.

This should include funding provided to Wales by the UK Government and whether the level of funding impacted on planning and preparedness in Wales, intergovernmental or political relations between the Welsh and UK governments. It will come as no surprise those who have been watching the news over the last three years of the difficulties that have arisen between at least Welsh Government and the UK Government. Those issues need to be fully explored to find out why those issues arose and what effect it may have had on the relationship between Wales and the UK and, in particular, what effect it might have had on provision of care. We would like to consider the question of co-ordination between the UK Government and the devolved governments as regards preparedness, variations between those governments in standard of approach to and planning and preparation, preparedness as regards capacity in NHS Wales for coping with and implementing infection control measures in the Welsh hospitals at stake and whether there was an adequate understanding of and adequate resourcing for infection control measures in large hospitals and care homes.

My Lady, turning to the issues that were raised by Mr Keith, at the time of compiling this note, the Rule 9 corporate witness statement of the Welsh Government has not yet been disclosed to Core Participants and may not have been received by the Inquiry. Core Participants have not had sight of the Rule 9 request itself but have been provided with a summary of the request attached to the CTI note, for which we’re grateful, at annex A. It is noted that, as regards the summary of the request to the Welsh Government, there is no specific reference in the following categories: (a) the Welsh Government’s role in resilience and civil emergencies; (b) inter-organisational co-operation and; (c) its planning for a pandemic. However, these specific categories are listed in the summary of the request made to the Scottish Government.

Without seeing the Rule 9 request or the witness statement and disclosures provided under this request and the request made to the NHS Wales Chief Scientific Adviser and Chief Medical Officer for Wales, it’s not possible to evaluate whether the request directed to the Welsh Government has been sufficient.

This includes whether it will have been sufficient information about the role of Wales Resilience Forum and Wales Resilience Partnership Team. We note the CTI’s willingness to issue discrete follow-up Rule 9 requests to organisations and we urge that it reviews whether to do so in respect of the request to the rest of the Welsh Government in view of the apparent disparity between terms of the requests to Scottish and Welsh governments.

Turning then to the question of disclosure to Core Participants, the question of timing has now rather been overtaken by events because of the difficulty of redacting. The only thing I would say about that at the present time is the fact that things may be delayed by putting everything back by a month shouldn’t be used to put everything by way of disclosure back by a month. We hope that this means that there is greater time for Cymru Group to consider the documents that are going to be disclosed and also to consider at length the statements which we hope will be disclosed.

So far as contents of disclosure, from our clients’ own knowledge and from what has been uploaded to Relativity thus far, we have been able to ascertain a timeline of reports and exercises related to pandemic preparedness and that’s annexed to our submissions, my Lady.

However, what appears to be missing from the disclosure at present is what happened next. We note disclosure is yet to be received from the Welsh Government. For our clients, this will be key in understanding the actions or admissions of the Welsh Government in relation to pandemic preparedness. We hope to be able to review into departmental communications, communications between civil servants and ministers, responses to the various exercises and reports carried out above, actions agreed upon following those exercises and reports, any audits of whether or not these actions were completed and, finally, the ministers’ and/or civil servants’ own assessments of Wales’ preparedness for a pandemic.

Without this evidence, we merely have the background of what should have been done but we’re not able to analyse the decision-making of whether it was actually put into effect. It is anticipated that there may be a great deal of memos, emails, ministerial briefings and other material which will need to be considered in detail.

The Cymru Group has received some disclosure that relates to Wales. We’ve not yet received any witness statements which are Wales-specific. The material provided to date properly considers Wales as part of the UK but given the devolution arrangements as set out above, Wales must also be considered independently of the UK. Its status should not be added on at the end of the Inquiry into the UK Government.

My Lady, we then turn to Relativity.

Lady Hallett: Mr Williams, sorry to interrupt, just before you do, I have been getting a little anxious – it’s not your fault – but your predecessors in addressing me have been referring to the pros and cons of various commercial operations. I wonder if we could just keep the submissions to something more neutral without using specific names, if that’s possible, please.

Mr Williams: Yes, of course, my Lady. In fact, I wasn’t going to refer to Relativity. I was simply going to adopt the submissions made by Mr Weatherby. So that saves that time and saves me referring to something I shouldn’t.

Lady Hallett: Thank you very much. Sorry to have interrupted you.

Mr Williams: No, not at all.

So far as Parliamentary privilege and the instruction of expert witnesses, we simply repeat our submissions there. It’s too early for us to make a comment on it and we will if it’s necessary at the appropriate time.

So far as evidence to the proposal of procedure Rule 10, we have tried to set out a way forward in terms of discussions between the CTI and the various Core Participants’ legal advisers. There are a number of ways of doing it. If I may mention one other way, in the Infected Blood Inquiry the Core Participants were required to submit their questions that they wanted considered or issues they wanted to consider to the CTI a week before the questioning of the relevant witness was undertaken and then, after the evidence had been given, the parties had an opportunity to email any additional issues quite shortly but any additional issues that could be gone through. It was a system which, taking into account the 150 or 200 witnesses that were called, it worked very well.

The question of witnesses and hearing timetable, we require quite a lot of information from the CTI before we can take that very much further but we would like to have the opportunity to meet with the CTI remotely following the receipt of the witness list and timetable so we can discuss how the matter can be forwarded.

Opening and closing statements, my Lady. We realise the difficulties on this in that the longer we have to talk about it, the less time we will have to hear them but we would like the opportunity in which to do written opening and closing submissions and, if possible, a brief oral submission at the very end.

The Listening Exercise, my Lady. Well, we have throughout these hearings, provisional hearings, offered its commitment to exercise working with the Inquiry team to assist in the development of a Listening Exercise and we do so again. We wish to be of every assistance we can.

Public hearings. The problem we have with public hearings, as emerged in the Infected Blood Inquiry, is that not all the United Kingdom has appropriate standards in terms of the internet connection throughout Wales. One way forward on that is to provide a room in a particular town, whether it is the north, mid, west or south Wales, where people could go, where there was good connections with widescreen TVs and so they could follow the proceedings without worrying about getting a good connection.

Doing that engendered a sense of community and it allowed people who had suffered terrible losses to give mutual support to each other and have someone with a medical background who can offer support at the same time.

My Lady, those are my submissions.

Lady Hallett: I’m very grateful to you and especially for your helpful ideas about informal ways in which we can make sure the Core Participants contribute to the evidence-gathering process.

Can I just assure you, Mr Williams, as I think you probably know, for my part and for the part of the Inquiry team, Wales is definitely not seen simply as an adjunct to the Westminster Government and I’m sorry if the use of language has given those you represent that kind of impression. I undertake to ensure that in future that the status of the devolved nations is properly recognised in language as well as in intent because I hope that you understand, and those you represent understand, we fully intend to ensure that the interests of the people who live in Wales are properly recognised during the course of this Inquiry.

So please do not think that anything that you’ve seen written is meant to be suggesting that Wales is any kind of adjunct or a secondary nation. It is not and I’m very conscious of that.

So I hope that in future you and those you represent will get the kind of clarity and information you need on the extent to which we will ensure that the interests that affect the people of Wales are properly investigated.

So thank you very much indeed.

Mr Williams: Thank you very much, my Lady.

Lady Hallett: Right, now, I think it’s Ms Gallagher.

Submissions by Ms Gallagher, KC

Ms Gallagher: Thank you very much, my Lady. May I just confirm you can see me and hear me properly?

Lady Hallett: I can, Ms Gallagher. May I apologise to you that yet again you come last. I am sorry, this is nothing personal, I assure you.

Ms Gallagher: No problem at all. I of course address you on behalf of the Trades Union Congress supported by junior counsel Sam Jacobs, Thompsons Solicitors and a team at the TUC and, in light of the submissions that have been made by Mr Weatherby, Ms Campbell , Ms Mitchell and Mr Williams, there are some points I won’t need to address orally because we support the submissions that have been made before.

You will recall, my Lady, that Mr Keith, when addressing you at the first preliminary hearing on 4 October, a little over four months ago, referred to having, and I’m quoting from the transcript, an open, indeed eager, frame of mind in relation to certain submissions and suggestions made by Core Participants.

On behalf of the TUC, may I say at the outset that we’re very grateful to Mr Keith and his team for demonstrating that open frame of mind in respect of two important timetabling issues for Module 1 today.

First, the start date of the substantive hearings for Module 1 and, secondly, our proposal of a further preliminary hearing in late March 2023.

My Lady, I intend to address you at the outset briefly on those timetabling matters in support of the application made by counsel to the Inquiry at the outset of this hearing and then to turn to a number of constructive specific requests from the TUC, which will maximise the prospects, we say, of that revised timetable working, whilst ensuring that Core Participants can meaningfully engage and your Inquiry can be as effective as possible in this vital module. We bear in mind, in making these submissions, your commitment from the outset to the core principles of timeliness and effectiveness. We bear that in mind in the submissions that we make in striking the right balance.

So first, on the start date, we strongly support the adjournment application advanced by Mr Keith this morning, seeking to put the start date of the substantive hearings for Module 1 back to early June rather than early May 2023. We are grateful that the Inquiry team recognises that, given the stage that has been reached in terms of the disclosure process in particular, the substantive hearings should not commence in ten working weeks’ time in early May. We strongly support his application.

You will have seen, my Lady, from our written submissions in advance of today’s hearing, dated 8 February from last week, that we had serious concerns regarding the imminence of that hearing due to start in early May, the stage preparation had reached and the consequent inability of Core Participants to meaningfully participate in the process thus ultimately undermining the effectiveness of your process.

In paragraph 3 of those written submissions, we’d highlighted a number of stark facts which included that, as of the date of this hearing today, we understood that of 114 Rule 9 requests addressed to various Government departments, adversely impacted groups and other organisations, only three statements had been disclosed to us, to the Core Participants, and there’s no provisional witness list, no list of issues to be explored and it seemed to us that starting in ten weeks was just unrealistic against that backdrop.

You will see in paragraph 7 that we highlighted the stark reality for Core Participants.

It appears to us from the submissions today and the helpful engagements we have had with your team in the lead up to today’s hearing that some of those concerns expressed particularly by us and by the Bereaved Families groups have been heard and we’re grateful to your team for today’s application to adjourn and we strongly support it.

We emphasise in our written submissions and in the submissions we make today and indeed in supporting Mr Keith’s application for a short adjournment that we do not doubt the diligence of the counsel to the Inquiry and solicitor to the Inquiry team and, indeed, we echo Mr Keith’s thanks to those behind the scenes who we know have been doing a huge amount of work since we met last in this module on 4 October.

Second this morning, Mr Keith supported our suggestion of a further preliminary hearing and you will see, my Lady, we made that suggestion at paragraph 10 of our written submissions. We had requested a further preliminary hearing this side of the Easter break, which comes in the first week of April; in other words, in approximately six to seven weeks’ time in late March 2023.

We note that this morning Mr Keith indicated that this could potentially – if you were minded to list a further hearing, it could potentially take place in late March, possibly 28 March and, again, may we say that TUC strongly supports that suggestion and we further submit that leaving it any later than 28 March would run the risk of derailing even a delayed start date for the final hearing or, indeed, having the alternative effect of the hearing proceeding without Core Participants having an opportunity to meaningfully contribute to the direction of travel and the finalising of plans for that final hearing.

So, my Lady, we strongly support – this is long, we agree, but the reason I’m giving you some of that detail is it then informs the submissions which will follow. So we agree to the proposal to move the start date back to early June. We think it’s realistic and appropriate, and we agree to the proposal of a further preliminary hearing and we ask that 28 March, the proposed date from Mr Keith, be fixed and indeed that it be fixed today.

Against that backdrop, we emphasise, my Lady, that even if you agree with what Mr Keith, I think, described as a modest adjournment, if you agree with that, that would still mean us being 14 working weeks away from Day 1 of the final Module 1 substantive hearing and that still leaves a great deal of work to do in a very short space of time, particularly given some of the points made by Ms Campbell before the lunchtime adjournment regarding slippage.

Against that backdrop, my Lady, we make four interlinked constructive requests for the process between now and 28 March and between now and early June. Some will be familiar to you, a drum we’ve been banging for some time, and you’ll note the overlap between the submissions we make and the submissions made by other advocates this morning.

So the four points I want to address you on briefly, my Lady are: number 1, disclosure; number 2, the scope of this module; number 3, the need for transparency in the Inquiry’s road map; and, number 4, the expert reports.

So first in terms of disclosure, this may sound obvious but we ask for disclosure to be made to us as early as possible. It’s clear that there is very substantial disclosure outstanding, possibly, to use a phrase from this morning, hundreds of thousands of pages and, in our written submissions at paragraph 3(b) that I took you to a little earlier, we referred to, of 114 known Rule 9 requests, us having only three statements and my rather dubious maths puts that at about 2.5 per cent of disclosure.

We now learn there may be 160 requests putting us at about 1.8 per cent of disclosure. We fully appreciate 160 requests does not necessarily equal 160 statements but it does seem to us clear that the vast, vast majority of disclosure is yet to be seen by any Core Participants.

We ask practically that there be a commitment to, at the very least, best endeavours that the vast majority of this disclosure be made prior to the date of the proposed next preliminary hearing, 28 March. 28 March is just before halfway before the proposed rescheduled date in early June. It will be only two months before the hearing date is due to start. Inevitably within that two-month period Core Participants will be asked to engage with lists of issues, evidence proposals and other matters, and that simply cannot be done without the majority of the disclosure being complete by the time we meet again and us meeting again in late March.

Now, we realise that your team cannot do the impossible. We heard Mr Keith today say very frankly that he cannot guarantee that all disclosure will be completed by mid-March as previously anticipated but we ask that the majority of disclosure be complete by the end of March and, if there are difficulties with that being achieved, the 28 March hearing would then be vital to take stock and ascertain what can then be achieved in what will only be eight weeks until the final hearing is due to start.

So we think that date is critical and we think vast majority of disclosure being completed by that date is also critical and there will only be eight weeks left to go.

Second, my Lady, scope. You will recall that we’ve raised concerns regarding issues concerning the scope of Module 1 previously, including at the last preliminary hearing on 4 October and we continued to raise some questions about that in our written submissions today. We’re essentially now told our questions will be answered by the Rule 9s but, of course, we still don’t have the Rule 9s. May we remind you, my Lady, of our words on 4 October, four and a half months ago, it’s page 105 of the transcript for that hearing. We, along with Mr Weatherby and others at that hearing argued for early disclosure of the Rule 9 requests, both as a matter of principle and practicality, and we said this in respect of practicality, if you will forgive me footnoting myself a little earlier, but you will see why. So, my Lady we said this:

“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’s likely to take some time for the resulting witness statements to come back to you and your team. The advantage of Core Participants having early sight of those Rule 9 requests is that we can feed in, we can identify if there are gaps, we can suggest additional queries or clarifications on the ambitious timetable you’ve set out. We’ve under seven months to the start of May. We can see preparation of these statements may take some months.”

We finally said this, my Lady:

“We do not want to be in a position which is 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.”

My Lady, it is now spring 2023. We’re actually in a worse position than anticipated on 4 October, as the disclosure process is running behind and, in our submission, the case for disclosing the Rule 9 request now is even stronger than it was on 4 October. So we ask that our October submissions be revisited on this point, given what has happened since and where we now stand, and the fact that we now are, if you grant the adjournment, 14 weeks from there start of the hearing and we remain largely in the dark.

We note that express submissions have already been made on this point today by Mr Weatherby, Ms Campbell and Mr Williams and we support all the submissions they made.

Now, of course, if the disclosure could be completed or substantially completed imminently, the need to see the Rule 9 requests would be weakened, although we do support Ms Campbell’s submissions as a matter of principle in any event. We revisit this request now because it seems to us clear that we will be receiving disclosure very close to time and, given the pressed timescales we have between now and the start of June, having sight of the Rule 9s a matter of weeks earlier could be helpful and could make the difference between the revised timetable set out by your counsel this morning being workable or not.

This, of course, is an inquisitorial process. It’s not civil litigation. When we see the disclosure or if we see the Rule 9 requests, if we as Core Participants identify gaps, it will be no good if we do that within weeks or days of the final hearing. That will just derail the process. That’s why we asked for transparency earlier. That’s why those first two requests are interlinked.

The scope uncertainty, my Lady, also overlaps with our disclosure request in one other way. Today Mr Keith, in his oral submissions, indicated that Module 1 would address high level preparedness but not, as he put it, sectoral and operational preparedness which will be addressed in later modules. Now, we of course recognise at a theoretical level that Module 1 will not necessarily consider all the logistical nuts and bolts of particular sectors which you will be doing a deep dive into in later modules. But beyond that theoretical acceptance, there’s very little we can say to what Mr Keith has said this morning because we cannot currently tell what the line between high-level preparedness and sectoral and operational preparedness will, in fact, look like, again because we don’t have the disclosure, we don’t have the Rule 9 requests.

We’re concerned that this may be – and I put it no higher than that – a false dichotomy but, in reality, we cannot engage with this properly and make helpful submissions to you until we see the disclosure or indeed, in the absence of the disclosure, we see the Rule 9s. That’s why I anticipate this may be an issue to which we need to return at the March hearing, if you list a March hearing and maybe we are reassured when we see the Rule 9s, or when we see the disclosure, there is no false dichotomy, the line is clear. We cannot tell.

So at the moment, we are unable to engage beyond hearing the phrase uttered by Mr Keith this morning in recognising, in theory, that that may be a viable distinction until we actually see the material we can’t engage with that properly.

By way of one very simple example, my Lady, just to concretise this, the Civil Contingencies Act of course established local resilience forums, a key part of the preparedness for civil emergencies but it’s one thing to understand the legal framework for local resilience forums; it’s quite another to understand how in practice those forums operated, how they were funded, the adequacy of that. At present, we simply have no idea how those issues how the distinction between legal framework at a high theoretical level and practical preparedness in terms of funding and how they operated in practice, how that will be dealt with in Module 1 or indeed in later modules.

It may be that we are reassured when we know more but, if not, the sooner we know the better and, certainly, in good time before the 28 March hearing so we and other Core Participants can address you on those issues when there will still be time to shift matters prior to an early June start date eight weeks out from that hearing.

Third, my Lady, and closely related, we request that the Inquiry provide additional detail regarding the provisional overall road map for the Inquiry, in other words further detail regarding the intended future modules. Now, you have heard from me and Mr Jacobs on this issue before and we deal with the issue in our written submissions at paragraphs 11 to 15 but it comes into very stark relief when we are a number of weeks away from the first intended substantive hearing and we remain without detail about how Module 1 will fit with later modules.

Now, our understanding from earlier preliminary hearings was that detail of future modules would have been forthcoming. The only real reason not to have done so was pressure of resources at the Inquiry, which we understand and are sympathetic to. But, so far, since we raised this issue in October, the only further information we have is the indication in the January newsletter from the Inquiry about certain topics that will be included in future modules. Now, we’re grateful for that additional information but the overall envisaged shape of the Inquiry remains unclear to us. With Module 1 fast approaching, it seems to us essential that we have a better understanding of how Module 1 will fit with the remainder of the Inquiry. The issue of pandemic preparedness is obviously of vital importance. It may well result in some of the most significant lessons to be learnt in this Inquiry but, at present, we do not have a clear understanding of how this topic will fit with the later modules and we want to assist you, my Lady, rather than making repeated submissions saying we’re in the dark, we don’t know. So we would like to have a clearer picture prior to the next preliminary hearing so we can consider it, take instructions, make informed submissions.

Our core point is so long as the Inquiry continues to resist revealing its thinking as to future modules to Core Participants and indeed to the public, Core Participants are excluded from that consideration. We lose the opportunity to assist you and, worse, we’re having to make submissions which may be badly informed but we don’t know they are badly informed because we don’t know the thinking behind the scenes. We suggest that’s not efficient and it doesn’t assist you and it doesn’t assist your team.

It’s particularly important to have efficiency when you are dealing with Core Participants like the TUC who don’t have large independent resources and are not in receipt of public funding.

Fourth, my Lady, on expert reports, we’ve not yet seen any expert reports, of course, so we’re limited in what we can say at this stage but we do have a specific request regarding process. We’re grateful for the update in relation to Professor David Heymann. We understand we’ll now see his report within the next ten days, in other words by late February, and the process, as we understand it, has been that your team received a first draft, then went back to him, that draft was revised and a further version is then received and then will be finalised and then disclosed.

So there’s a process where a draft comes in and there’s a period of some weeks when your team has access to it and Core Participants don’t.

Now, with the other outstanding experts’ reports, we’re now told, and thank you to Mr Keith for this, that we will receive them by late March as we anticipated may be the case, you I will know, my Lady, in paragraph 18 of our written submissions. We have two requests. First, we request that all of those reports be disclosed prior to the next preliminary hearing. If the preliminary hearing is on 28 March, every effort must be made to have disclosure of those reports prior to that hearing, otherwise I’m afraid we’ll all be back saying you need another preliminary hearing. It may well be you do need a further preliminary hearing but it seems to us, to ensure that’s effective eight weeks out from a start date of early June, if we have the reports, we can engage, we can make submissions.

We can hear that may well be tight, given the process followed with Professor Heymann and the back and forth and that’s why we make a second request, my Lady, which is that when the first drafts of those reports are received, they be disclosed promptly to Core Participants. We, of course, recognise that they are working drafts and that they may be subject to revision but we ask that they be disclosed at that stage. We are all subject to the undertaking. We will receive them on the basis that they are working first drafts and that they may be subject to revision but that will allow us more time to consider them, to take instructions and to make submissions which ultimately will help you.

So there are our four specific points, my Lady. We also, of course, support the request made by Mr Weatherby orally today and made in writing at paragraph 32 of the joint written submissions of the Covid-19 Bereaved Families for Justice and the Northern Ireland Covid Bereaved Families for Justice, that the TUC give oral evidence, given the vital importance of the TUC’s evidence concerning preparedness, resilience and its links to the austerity agenda and funding cuts but I anticipate they are issues on which we will need to address you in March when we have more information, more disclosure and we can make informed submissions about key witnesses. But at the present we, of course, support that.

My Lady, in conclusion, may I say that the submissions we made today are drawn from a recognition of your strong commitment, which we commend and support, from the outset to those core principles of timeliness and effectiveness. We bear very much in mind the assurance that you gave at the 4 October hearing that you will do everything in your power to achieve a sensible and fair balance, with the Inquiry being as thorough as possible whilst also being determined that this is not an Inquiry which will drag on for decades producing reports when it’s too late for them to do any good.

We are very conscious of your principal aim which you have described from the outset of being to produce reports and recommendations before another disaster strikes the four nations of the United Kingdom and the importance of learning lessons as quickly as we can in order to reduce the number of a deaths, the suffering and the hardship and we’re grateful for the ambitious timetable you have set with that in mind.

The submissions we have made today seek to ensure that this final substantive hearing in Module 1 does take place as soon as possible, using the timetable outlined by Mr Keith today but also that it’s effective and that Core Participants’ voices, experience and expertise are heard and considered. If this timetable is put in place today, we have 14 weeks and we will have six to seven weeks before the next hearing. There is much to do. We’re grateful for the shift in timetable proposed by Mr Keith this morning. We support it but the only way we will be able to make that timetable work and be effective is if we are let in before the 11th hour.

That’s why our core submission today is more transparency, earlier disclosure, earlier transparency, so that Core Participants can be as effective as possible and ultimately assist you in your goals, my Lady.

Unless I can assist you further, those are our submissions.

Lady Hallett: Thank you very much indeed, Ms Gallagher, as constructive as ever.

I do understand your concerns, I hope that’s been apparent this morning, about the proposed start date and of course disclosure. In my view, as it seems to be the view of all the participants, far better delay the start by a week or more, or up to four weeks, than start early and then not be ready and not be effective. So I am sympathetic to those submissions.

If I do decide to delay the start, it will of course affect the other modules and it’s one of the reasons why you don’t have as much information as you would like and I would like you to have on the later modules.

I hope you accept that I am somebody who believes in openness and directness and I have – I’m not resistant to people knowing what my thinking is, it’s just that there has never been an Inquiry with so many issues and so many complex issues and some of my thinking does have to change as we go along. I have deliberately not set the later modules in stone because we have to be flexible.

But I can assure you and the other Core Participants that whenever I feel it is appropriate and I’m in a position to reveal more, then I will because I know that it does help you and the other Core Participants if you have as much information as possible.

I can also assure you that I’m doing my very best to get the disclosure to you as soon as possible, again because I totally and utterly accept that the Core Participants can only participate effectively if they have sufficient time to prepare properly.

So your submissions and the submissions of your colleagues have not fallen on deaf ears, I can assure you of that. What I can necessarily do about it may be limited but I promise to do by best. So thank you very much.

Ms Gallagher: Thank you, my Lady.

Lady Hallett: Does anybody else – before I ask Mr Keith if he wishes to make any further submissions, has anybody else contacted Mr Smith, solicitor to the Inquiry?

They haven’t, in which case I can turn to you, Mr Keith, for your concluding submissions.

Reply Submissions by Mr Keith, KC

Mr Keith: Thank you, my Lady. May I commence by making some points, some general points about the disclosure process and the submissions which have been made in relation to that.

Plainly, the issue of disclosure lies at the absolute core of the debate about the hearing date and the timetable. It is obvious and it probably requires no further elucidation that the Inquiry team will strain every sinew to get the documents out the door to the CPs as quickly as it can. Contrary to one of the suggestions, there is absolutely no point at all in using any delay in the start of the process, if that is what you order, as an excuse to delay the disclosure process. How could that possibly be the case?

The Inquiry team recognises completely the absolute need to get the documents to the Core Participants, so as to get them fully engaged, and we have no doubt, my Lady, that you will set a date for the commencement of the hearing that properly reflects the reality of the disclosure process.

But I need to make plain that the disclosure process will in no way be hastened by disclosure of the Rule 9s, contrary to what was suggested by Mr Weatherby. Knowledge of the Rule 9s is not the same, of course, as having receipt of the documents which come in response to the Rule 9 requests because only the documents highlight and can highlight the issues, highlight the nature of the witness evidence which is to come and can set out the overview of the hearing itself.

The disclosure process will obviously continue and it continues as fast we can make it run on a rolling basis. We don’t and we can’t wait for the receipt of all the documents before disclosing them. They will go out of the door as soon as each individual document finds its way through the review process and is obviously the subject of a decision on relevancy and all the appropriate redactions are made.

It necessarily follows that there will come a time when the vast majority of the documents have been disclosed but it won’t mean that there is a hard-edged date by which all the documents will be received by the Core Participants. Some documents may just come in late and they will have to be disclosed as soon as the review process is complete thereafter.

In relation to the list of issues, or perhaps they may be described as a road map, helpfully, by Ms Gallagher, the list of issues, a list of issues is obviously going to be of assistance to the Core Participants because it highlights or will highlight the overall approach taken by the Inquiry to the forensic material. But we’re unable to provide a list of issues until we have read and analysed all the statements but, in particular, the statements which have been received very helpfully from Core Participants themselves in which they set out, to a very large extent, the sorts of issues that they would wish you to examine.

Many of them – they all make very good points. Many of them are reflected in our provisional internal list of issues but not all and we obviously need to take account of what is said there before we draw up a list of issues.

But, my Lady, with your permission, may we therefore proceed to try to get the list of issues out to the Core Participants in the next three weeks? There would be little point, it seems to me, in providing a running list of issues or, in other words, a provisional list of issues because, firstly, such a document can’t replicate and can’t prejudge the job of reading the documentary material and, secondly, there would seem to be little point in raising in a provisional list issues which don’t ultimately see the light of day and are reflected in the public hearing itself.

Mr Weatherby made some submissions in relation to the redaction process concerning the names of the junior officials. My Lady, may I raise just a note of caution. He referred repeatedly to this process as being one by which the names of witnesses were redacted. This is not a process which concerns the redaction of the names of persons who may or will become witnesses in due course. These are emails and policy documents – emails primarily – which refer to the names of junior officials who are not concerned or were not concerned in the decision-making process or played such roles as lacked significance, such that they will not be witnesses or are very unlikely to be witnesses in due course.

That is, of course, why their names are irrelevant. Because their names are irrelevant, it is not material or information which the Inquiry is obliged to disclose, for the obvious reason that the obligation is to disclose relevant material and those persons who have no meaningful role to play at all in the forensic inquiry in which you are engaged have their own personal data entitlements which allows them to say properly, “If we are not witnesses and we’re not likely to be witnesses and nothing that we have done is within the scope of your Inquiry, why do our names matter and why should they be disclosed?”

Turning to a further issue raised by Mr Weatherby, which was the issue concerning the assistance which he believes that his clients and family members may give in relation to the provision of evidence in Module 1. This is a matter, my Lady, upon which you have already ruled. Of course, you ruled on the principled issue of whether or not the Inquiry would receive in Module 1 pen portrait evidence or evidence from the bereaved or other members of the public which doesn’t relate to systemic issues and that caveat is extremely important and it’s right that I emphasise it, not least because you emphasised it in the course of your ruling, given after the 4 October preliminary hearing.

You ruled that you had not received such evidence but you would of course receive evidence where it goes to an issue in a module and you gave there very good example of Do Not Resuscitate orders as being an issue on which, in principle, bereaved members of the public could or would be able to give evidence in relation to.

So, my Lady, that’s a matter which has already been raised and addressed but, naturally, if in the course of the preparation for Module 1, it does happen that there is evidence which is relevant from bereaved to an issue then, of course, it will be treated like all other evidence which is potentially relevant.

The further submissions were made in relation to the Listening Exercise and Every Story Matters. My Lady, quite a lot of information was, in fact, contained in annex 7 to the note from the CTI of 30 January but we acknowledge, of course, that the Core Participants have a very natural need for concrete detail. The reality is that, as the system for the Listening Exercise is put into place, as it is like pieces in a jigsaw, the detail of it will naturally emerge. There is, as I’ve said already, a plan for a webinar in the next couple of weeks, to which the Core Participants, of course, will be made welcome and will be invited to, in which further details will be provided.

The reality is that this very complex, detailed system, which will require a great deal of many resources is put into place and as it is developed, obviously the detail of it will become more and more clear because it is a system to which all Core Participants, like every member of the public in the United Kingdom, will be able to contribute and so they will necessarily be able to see the exact shape and nature of it.

The next issue concerns the submissions made by Ms Campbell, King’s Counsel, concerning disclosure of the Rule 9s. As I’ve already submitted, disclosure of there Rule 9s themselves will not really advance the position of the Core Participants. Firstly, in principle, there’s obviously no rule of law practice that necessarily provides for provision of the Rule 9s but, secondly, they have already been provided with the names of the Rule 9 recipients and, through the updates, a broad overview of what each of the Rule 9s addresses. That information says a lot about the nature of the Rule 9 requests themselves.

But thirdly, and most importantly, it is by receipt of the documents and the statements at the conclusion of the disclosure process that the Core Participants are enabled to understand precisely what is in issue because it’s the documents and the witness statements which provide the foundation for the public hearing, and that is why implicit in the submissions that you’ve heard, and in particular the submissions from Ms Gallagher, there is the recognition that by the time they get the documents the need for the Rule 9 requests themselves will have fallen away.

On the question of experts, the Core Participants have received a considerable amount of information about the topics that the experts address. The information provided in the annexes to the CTI note represents the substance of what the experts have in fact been asked. You received a request for the materials referred to in the letters of instruction to be disclosed in advance of receipt of the substance of the reports themselves. We would suggest that that would simply provide for an extra additional level of administration. There is very little purpose to be gained in providing the Core Participants with the materials to which the experts may in due course refer to in their final reports when they will, of course, be receiving the draft reports themselves in due course.

In relation to whether or not the experts would properly be covering the same areas in relation to and across the border Scotland, Northern Ireland and Wales as they are in relation to the rest of the United Kingdom, I absolutely assure the Core Participants that they have been asked to address, of course, the devolved administrations and they could not sensibly have been so otherwise.

The submissions turned, through Ms Mitchell, to the issue of the process by which some of the documents were being disclosed but Ms Mitchell made the point, with which we have considerable sympathy, that the way in which the Core Participants have received the documents is not altogether efficient, primarily because they’ve received documents when they have been made ready for disclosure as opposed to, for example, receiving statements with links to the exhibits to which the statement refers. That, I’m afraid, is simply a reflection of the fact that some of the documents have taken longer to be processed through the disclosure procedure and we felt it best that they should receive any document, whether are not it was accompanied by its fellow documents, as soon as they were ready to be disclosed.

In relation to the submissions from Mr Williams, I too would like to assure him that Wales is in no way being considered as an adjunct to the United Kingdom. It is firmly within the scope, and indeed the provisional list of issues, but more so we have issued a considerable number of Rule 9s to Welsh-specific Rule 9 recipients from the Welsh Government, the Welsh TUC, the Welsh LGA, to ministers, civil servants, the Wales Council for Voluntary Action, Department of Health and Social Services Group in Wales, Disability Wales, Climate Change and Rural Affairs Directorate in Wales. So we have very much the affairs of Wales and the way in which the pandemic affected Wales and also the issue of preparedness very much in issue.

I should also say that the Core Participants (in this particular regard, the Covid-19 Bereaved Families for Justice Groups in Wales, Scotland and Northern Ireland) have produced, through the statements which they have provided in response to the Rule 9 request directed specifically at them, very helpful indicia of the sorts of issues that we should be looking at and must look at and that has helped us, and will continue to help us, to ensure that the right issues are identified and swept up in your review.

Finally, in relation to the submissions from Ms Gallagher, she invites you to order that the expert reports be disclosed prior to 28 March, being the date upon which you may be ordering a next and further preliminary hearing to take place upon. We will obviously aim to disclose the expert reports as soon as we can but there would, in our respectful submission, be little point in tying an order that they be disclosed to the date of the preliminary hearing, if there be one, because a breach in such an order of itself wouldn’t require a preliminary hearing to be heard and, in any event, the way in which the practice is meant to work and is envisaged to work is that as soon as the Core Participants get the expert reports, they will be responding to us in writing with their comments, with their observations, with any queries that they have, and, most importantly, by identifying any further areas that they would wish us to ask the experts to consider. That process will take place as soon as they receive the expert reports. It doesn’t need to wait for a preliminary hearing.

You were also invited to fix the date for a preliminary hearing today but our position is that you would need to first rule on the anterior issue of whether or not Module 1 should be adjourned and, of course, that is not a decision which we suspect that you will make or rule upon today and, therefore, it wouldn’t be right for you to make any orders in relation to the date of a further preliminary hearing since that is a subsidiary issue.

My Lady, those are all the matters that I would wish to raise by way of reply submission, unless there are any other areas that you would wish me to address.

Lady Hallett: Thank you very much, Mr Keith. I’m very grateful.

Thank you to everybody who has attended and who

has provided helpful submissions. I’ve now said several

times that I am very grateful and I will consider those

submissions carefully. Two matters that I must make

a decision on as soon as I can: one, whether or not we

have a third preliminary hearing as suggested by

a number of the participants, particularly Ms Gallagher;

and also whether or not I move the proposed start date

from May until June. I know that people need to make

arrangements, they need to know my decision on those

issues as soon as possible, and so those are definitely

matters that I will be making public as soon as I’m in

a position to do so.

Other matters may be taken in rather slower time.

Some matters may not need to be ruled upon at this stage

but I will also make sure that any decisions are made

public as soon as I have completed them.

So thank you to everybody again and that concludes

this second preliminary hearing into Module 1.

Thank you.

(3.03 pm)

(The Inquiry adjourned)