Transcript of the Third Module 1 Preliminary Hearing, 25 April 2023

(10.30 am)

Lady Hallett: Good morning. This is the third preliminary hearing for Module 1. We are only weeks away from the substantive hearings, which should be held at our hearing centre and will be in person as well as streamed online, and at which witnesses will be called.

Not surprisingly, there are a large number of issues to be considered today to ensure that we’re all as prepared as we can be to make the hearings as effective as possible in June and July.

So I shall limit my opening remarks to those, and I shall ask Mr Hugo Keith King’s Counsel to provide more details of the issues that he wishes to raise and those matters that he wishes to comment upon raised by the core participants in their submissions – and I thank them, as ever, for their very helpful written submissions that I have considered very carefully – and, therefore, we only need to focus on the most important matters today.

Mr Keith.

Statement by Lead Counsel to the Inquiry

Mr Keith: Thank you, my Lady.

As you know, and as you’ve said, this is the third preliminary hearing in Module 1, the first two having been held by you on 4 October and 14 February.

My Lady, I don’t propose to reintroduce the core participants or their legal representatives. There remain 27 core participants in Module 1, and all remain legally represented. We welcome them all, of course, to this hearing.

Written submissions for today have been received from eight core participants, in one case jointly. And I believe that you’ll be hearing oral submissions from five of the core participants, that is to say from Covid-19 Bereaved Families for Justice, Northern Ireland Covid-19 Bereaved Families for Justice, Scottish Covid Bereaved, Covid-19 Bereaved Families for Justice Cymru, and the Trades Union Congress.

My Lady, I know you know that submissions have been received from three other bodies, core participants who don’t wish to make oral submissions this morning. They are the Cabinet Office, NHS National Services Scotland, and Public Health Scotland. All the written submissions, as everyone would expect, have been very carefully considered by you and the Inquiry team.

An enormous amount has been done since we last met, and the Inquiry has worked extremely hard to ensure that it and the core participants will be ready for the public hearing scheduled under this most demanding of timetables.

But in order to provide a proper foundation for the debate we must have today surrounding the issue of most concern to the core participants, which is whether the process by which Rule 9 statements and documents have been disclosed to them and whether they will enable them to participate meaningfully and properly in the Module 1 public hearing, I need first to set out some figures concerning disclosure.

My Lady, I’m just going to pause there, because my screen has gone blank. It’s showing up Mr Mitchell King’s Counsel, counsel for Scottish Ministers, but I’m not entirely sure why that is.

Lady Hallett: I’ve got a picture of you. I can hear you, Mr Keith, and I’ve got you under the heading of Claire Mitchell KC.

Mr Keith: Whoever it was, they have removed themselves from the screen in light of what I’ve just said, so I think the problem is resolved.

So, my Lady, the debate today, of course, is whether or not everybody can be ready in time for the hearing, and so to that end I need to set out some figures concerning the disclosure process.

Dealing firstly with the Rule 9s, including tranche 15, which was provided last Friday:

39 Rule 9 statements have been disclosed from 38 providers.

60 Rule 9 statements, or rather statements from 60 Rule 9 providers, are in final form and will go out in the next week or so. They are awaiting either final confirmation that no redactions or amendments are required, or they simply await to be put electronically on to the requisite system.

48 more draft statements simply await a signature. These include various parts of the Scottish and Welsh administrations and the Northern Irish Executive, and they will be received and then provided, also likely in the next two weeks.

Of the remainder of the total number of 212 Rule 9 requests made so far, responses are awaited from 38 statement providers, 13 draft statements are under consideration by the Inquiry, nine statement providers have either not replied or not engaged significantly, and six are clear that they will not be providing any responses at all.

So, shortly, the core participants will have Rule 9s from 145 providers. That is a very considerable amount of documentation.

On the exhibits front, including again tranche 15 from last Friday, some 5,200 documents have been disclosed to the core participants. Several hundred more will be going out as part of tranche 16, likely to be this Friday.

As far as what remains is concerned, some 3,300 documents are already with the material providers, or about to go, decisions on relevance having been made. They await simply a final indication from the material providers that there are no issues with the redactions, if any, which have been applied by the Inquiry, and that there is nothing preventing their release to the core participants. I expect that these 3,300 documents will be provided in tranches over the course of the next two to three weeks.

Around 6,700 documents are in the review process, either at first or second level review, awaiting a determination on relevance. Not all the documents will be relevant, of course. As you know, many thousands of documents from the documents which have already been processed have been weeded out and were weeded out because they were either not relevant or because they were duplicative.

The pace at which the Inquiry paralegals and lawyers in the review process have been able to assess documents for relevance has gone up dramatically since we last met due to considerable further resources being devoted to this exercise. In short, the number of full-time reviewers has been increased significantly, and so the rate of progress at first level review has tripled, and the rate of progress at the second level review has doubled.

This allows us to be confident that such of these documents that are determined to be relevant, historically around 40% to 50% of all the documents received – because, of course, the Inquiry requests documents that are potentially relevant but not all proved to be relevant – these can be sent to the material providers shortly for them to see the documents in their final state pre-disclosure before being sent out to the core participants. These documents will be received over the next month.

By then, in a month’s time, around 11 to 12,000 documents are likely to have been disclosed in total. This is a remarkable feat, given that the first tranche was only made to the core participants on 20 December.

It is difficult to be precise, but we assess that there are a considerable number of further documents which remain to be received from the material providers, to be numbered in the thousands. These documents, too, will need to be reviewed and the relevant documents amongst them disclosed.

My Lady, at first blush, that may appear alarming, but I must make three points.

First, the overall review process continues to speed up, and so the time required to review the documents for relevance will be shorter than for the documents that have already been reviewed.

Second, many of these later documents are from material providers who played a less central role in emergency preparedness, resilience and response, and therefore a smaller proportion of documents by comparison to the historical proportion are likely, when reviewed, to be found to be relevant, and they are also likely to require fewer individual redactions, which of course means the process can be generally speeded up.

Lastly, and most importantly in this particular regard, we obviously know what general areas are likely to be required to be raised with the first witnesses who are to give evidence in the public hearing. We know which witnesses are scheduled to be heard first, and we know what documents are therefore likely to relate to those witnesses and which need, therefore, to be provided to the core participants in good time.

The core participants’ responses to the evidence proposals for the first week’s witnesses are due to be sent back to the Inquiry in the week of Monday, 22 May, still four weeks’ hence. By that stage, the core participants will undoubtedly have received the majority of all the documents likely to be relevant to each witness.

Nevertheless, my Lady, the core participants obviously expressed concern that the timing of the provision of material will inhibit their ability to participate meaningfully. I hope that the figures which I have provided will reassure them that in this most demanding of timescales that the process can and will be made to function properly. But there are some further points that I think I need to make.

Firstly, Module 1 was always going to be the most demanding of processes. From the beginning, you made clear your determination that the Inquiry should commence its public hearings with the utmost dispatch. It is plainly in the public interest that relevant issues are scrutinised, that core witnesses and documentation are examined, and that the Inquiry makes its recommendations as quickly as possible so that lessons are learned in time. That is obvious. Moreover, it was the clear view of those whom you consulted as part of the terms of reference public consultation exercise. So we must commence on 13 June. It would be wrong to consider putting it back out of a prospective fear that we might not be ready. We must continue in confidence that we will make it work.

Secondly, the process was always going to be demanding. In common with most Inquiries, it is just not possible to secure and disclose every document in advance of the public hearing in a way such to allow core participants ample time within which to prepare for the hearing. Legal processes, least of all Inquiries, do not work like that. The reality is that a considerable amount of documentation will continue to be received by the core participants right up to the point at which the witnesses to which they could arguably relate will be giving evidence. It is unavoidable.

May I say we have on our side no doubt whatsoever that the core participants have the determination and drive and their legal teams the legal skills to make it work.

Third, there can be no doubt that by the time of the hearing, sufficient material will have been secured and disclosed and enough time afforded to the core participants, and I should say the Inquiry team, upon whom the greatest burden falls, to enable you to be satisfied that you can conduct full and fair inquiry in Module 1.

My Lady, with your enormous forensic experience, you know that no participant in any forensic process can ever identify, let alone prospectively, where the precise boundaries of that process’s reach should lie and what material needs to be gathered in order to ensure that the process discharges the obligations placed upon it.

In other words, it’s in the nature of these Inquiries that no one can ever say precisely what material, what documents, what policy material, what emails, what WhatsApps need to be assembled, let alone which witnesses have to be examined orally. The key is to identify with sufficient precision the general issues that are required to be ventilated and to seek and disclose material relevant to those issues. It is the ventilation, the airing of the issue or the issues that matters.

That is especially so in Module 1, because Module 1, concerned as it is with structural preparedness, is necessarily quite a high level and a somewhat ill-defined module. It is not an inquiry, that’s to say Module 1, into all aspects of the United Kingdom’s emergency planning, response and resilience, or the whole of the United Kingdom’s public health provision. It is an inquiry into such parts of the preparedness system, such parts of the overall structure as is necessary to answer the broad question: were we properly ready for the pandemic that ensued?

It follows that no Inquiry is ever likely to be rendered incomplete or inadequate by virtue of the absolute number of documents it discloses or the number of witnesses from whom it hears. It is impossible to call every witness who can give evidence of every aspect of every issue in every paragraph of the list of issues for Module 1. The Inquiry has neither the time nor the resources for this, and the core participants and the public could not and would not wish this to be so. Choices will have to be made and are being made, and those choices have been made with the great assistance of the core participants. As you know, they are due to respond to the Inquiry’s provisional list of witnesses by Thursday this week, and we will gratefully receive their comments, their help, and their assistance as to which witnesses we, or you, conclude must be called. I will return to this in a moment.

But the choices as to those witnesses can only be guided by the identification of the core issues: what was the state of preparedness? What lessons can be learned? What recommendations can be made? We are confident that we’ve identified the right issues to present through a selection of the most relevant witnesses. We just can’t call every possible witness.

So, my Lady, drawing the threads of those submissions together, I must emphasise that although the law doesn’t give core participants the sole right or ability to decide themselves what witnesses should be called to be examined, all the core participants, including Covid-19 Bereaved Families for Justice, are being given the opportunity to tell us what issues they think we should explore, what witnesses they think we should call, what should be put to them, and what documents should be scrutinised.

That is why we sent out proposed provisional list of issues, why we sent out the provisional list of witnesses, and why the core participants will be fully and properly engaged in the proposed evidence proposal process by which they tell us and inform our decision as to how we should examine witnesses, so they are given the chance to help decide what evidence should be produced.

My Lady, may I make one final point in this vein concerning this Inquiry? It concerns the general progress that you have made. Few countries have established formal legal Inquiries investigating the many aspects of the Covid pandemic, but of those that have, the UK Covid-19 Inquiry is the first to have reached public hearings. A number of countries, such as Sweden, Norway, Denmark, Australia and New Zealand, have instead instituted independent commissions led by experts in, for instance, epidemiology, public health, economics and public policy. Some of those commissions have indeed concluded, but they simply did not have anything like the same scope or depth as this Inquiry, and nor did they amount to full legal forensic inquiries.

My Lady, with, I’m afraid – and I apologise, that rather lengthy introduction – can I then turn to some of the specific points raised in the very helpful written submissions received from the core participants.

A number of general matters have been raised, to which we have naturally given the most careful consideration, and in relation to which I have no doubt whatsoever that you will give your own consideration when deciding what needs to be done in response. We’re very grateful to the core participants, though, for their contribution and for raising these issues.

My Lady, the first issue concerns your ruling in Module 2 concerning the procurement of expert evidence to deal with the issue of structural racism.

In your 9 March ruling following the 1 March preliminary hearing in Module 2, you ruled at paragraph 32 that Module 2 should obtain expert evidence from a suitably qualified expert or experts on the nature and degree of pre-pandemic structural racism.

You said that such an expert or experts would assist you to understand the issue and would provide a clearer evidential foundation upon which the specific issues of Module 2 could be explored and developed, but you also determined that you would consider in due course and keep under review the extent to which such evidence would be needed in other modules.

We are very grateful to Covid-19 Bereaved Families for Justice UK and the Northern Ireland Bereaved Families for Justice group for bringing this back to your attention.

The purpose of your determination was not, of course, to enable the Inquiry to consider whether government decision-making, the subject of Module 2, was knowingly infected by racism, but to better understand the reality of structural racism and to set out the proper context against which that decision-making falls to be considered.

In other words, to what extent the decisions that are the subject of Module 2 properly took into account an understanding of pre-existing structural racism. In order to be able to address the decisions in that context, it’s obviously important to understand what is structural racism, what its impact is, what its effects are, and how and why it matters so very much.

There is an argument that a proper analysis of the adequacy of the UK’s general preparedness arrangements, which are the subject of course of Module 1, must similarly take into account the possible impact of pre-existing structural racism. But I do not believe there is any need to specifically instruct the experts who have been commissioned in Module 2 to consider themselves what the impact on Module 1 preparedness as a result of structural racism might have been.

We have taken the alternative course, my Lady, of asking Sir Michael Marmot, Professor Bambra – two of the existing experts, of course, from Module 1 – to address the extent to which structural racism was a consideration in pandemic planning, and we await their response.

My Lady, in my respectful submission, that is the correct and proper course, particularly bearing in mind the remaining time between now and the Module 1 public hearing, to raise the important point or to address the important point raised by those two core participant groups.

The second issue concerns points made particularly by Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice group, whether or not – or the extent to which, rather, the final form of the issues which the Inquiry has promulgated by way of publishing the list of issues, took into account their suggestions. They’ve expressed concern that some, but not all, of the points that they raised didn’t appear to have led to amendments in the proposed list, that they don’t find reflection in the final version of the list, and they don’t know why.

My Lady, seven core participants responded with their thoughts on the provisional list of issues, one body having been given a week’s extension, and all the points were very carefully considered by the Module 1 lead solicitors and the entire barrister team, and a number of changes were made. The matter was then brought to your attention, of course, as the arbiter as to what matters your Inquiry should look at.

The position is that, as I say, a number of changes were made, but the remainder of the points – we found no reflection in the final form – were not required to be there, either because the point being made or the issue sought to be included was already within the intended scope of the list, or because the matters raised were not properly falling within Module 1, or, in many cases, the points being made were in fact more of an evidential matter, thereby being some things that should more properly fall to be put to witnesses as a matter of evidence.

So to give you an example, at paragraph 18 of the helpful submissions provided by the Trades Union Congress, a point is made concerning the interface between public health services and social care. Although the resilience of the social care sector is not an issue, quite plainly within Module 1, the issue of whether recommendations from Operation Cygnus concerning the pressure that would be placed on the social care system if the NHS started triaging patients and whether that process worked is something that can be raised with relevant witnesses in Module 1. It is something that is just not required to be identified as a headline issue. It is a matter that can properly be put and will be put to the proper witnesses.

So the general point needs to be made: many of the points that were advanced were reflections, understandably, of evidential matters that you will be calling evidence upon.

The structural problems and the overarching and the wider issues of the resilience of the social care sector can also be, of course, raised with relevant witnesses in a later module, as can be the point made also by the Trades Union Congress that the social care workforce felt abandoned by the government. Those are issues which more properly fall to be addressed in later modules.

The third area concerns whether or not preparedness in hospitals and care homes falls within Module 1. This is an issue which is raised by one particular core participant. My Lady, in our submission, and of course again it’s a matter for you, the answer is: no. Whilst Module 1 of course will look at high level planning, the manner in which in general terms the UK Government and the devolved administrations declared how hospitals and care homes should prepare for civil emergencies and pandemics, the more detailed examination of preparedness in hospitals and care homes, especially at an operational level, must be for the healthcare and care sector modules. And to the extent that when the highest levels of the government, UK Government and devolved administrations, were making decisions in the early days of the pandemic that affected hospitals and care homes, obviously the nature and adequacy of that decision-making will find an additional reflection in Module 2. But they are not Module 1 issues.

The fourth point concerns Mr Weatherby’s submissions that the Rule 9 requests that the Inquiry has made be disclosed to the core participants. He and Mr Lavery King’s Counsel have reiterated their requests, the Rule 9 requests made to the material providers, to have been disclosed.

My Lady, in the first preliminary hearing in Module 1, you ruled that the Rule 9 requests made by the Inquiry should not be disclosed, and you adopted the same approach in Module 2. But, of course, you stated that you would keep the matter under review. We would invite you not to order disclosure of the Rule 9s.

I’m just going to pause there again because certainly my screen has gone blank. It’s quite possible that a core participant is not on mute and, therefore, by making a noise has caused the camera to change to them.

Lady Hallett: I can see you, Mr Keith, and can hear you.

Mr Keith: I’m told it’s working again.

So, in my submission, it’s not necessary to order disclosure of the Rule 9 requests. The two core participant groups, my Lady, assert that they need the Rule 9 requests in order to be able to assess the rate of progress at which the Inquiry is making disclosure. We respectfully suggest that there is no need for the disclosure of the Rule 9s. The core participants know, by very fact of the amounts of material being disclosed to them, from the monthly updates from the Solicitor to the Inquiry, as well as from the details of what I provided a few moments ago, what that rate of progress is.

But more fundamentally, my Lady, now that the core participants are receiving the fruit of that progress, they’re now receiving the statements and the documentary exhibits which the Rule 9 requests seek, there is simply no need for them to see the underpinning, the underlying Rule 9 requests themselves.

Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice also point out that they’ve received some exhibits without the accompanying statements. The reason for this, my Lady, will have been that, for whatever reason, the statements were not ready to be disclosed but their accompanying exhibits were, and so rather than holding up the disclosure of the exhibits, the Inquiry would have held back the statements until the disclosure process was complete, so the exhibits were provided unaccompanied, as it were. I believe that the statements relating to those exhibits either have been or will very shortly be disclosed.

My Lady, the fifth point concerns the material providers and some of the ways in which the Inquiry has encountered difficulties in receiving documents and information from them.

My Lady, almost all the core participants have responded, quite understandably and with various degrees of concern, to what we said in the note from the Solicitor to the Inquiry and also in the Counsel to the Inquiry note about the difficulties encountered with a small number of material providers. The problem that we have encountered is two-fold.

First, a number of the government corporate statements that we were provided with, which set out explanations as to how those departments or bodies worked and what they did, were arguably insufficiently rigorous in identifying ways in which those bodies or departments failed to anticipate, plan for the pandemic, or were insufficiently rigorous in identifying for our benefit further lines of inquiry.

Where we perceive to be this case, and in fairness, I must say, that the Rule 9 requests have generally been extremely demanding, in terms of what was sought, the length, and in terms of the time allowed, we have gone back and sought further information in an even more direct and pointed way.

The note from the Solicitor to the Inquiry sets out the bodies and departments that have required this sort of further Rule 9 request or clarification.

So, my Lady, the general position is that whatever deficiencies were in the initial Rule 9 responses have been rectified, as you would expect them to be so, by virtue of the Inquiry responding to the material providers.

Covid-19 Bereaved Families for Justice Cymru asked a particular question as to whether or not the Welsh Government was such an offender. The position in relation to the Welsh Government was that in its draft response, although the response was full and complete, that there was a notable absence of supporting exhibits in relation to some areas covered by the Rule 9 statement. This was rectified after we raised the matter with them, and we demanded and we received assurances, and we’ve received the material, of course, to the effect that it wasn’t enough just to make statements of fact in statements; it was important that whatever assertions the statements had made were properly supported and backed up by exhibits.

My Lady, I should also say there has been no shortage of endeavour or good faith on the part of all the Rule 9 recipients, even if they’ve not initially responded in the way that we would have wished. Most of them have dedicated very considerable legal, financial and administrative resources to responding quickly and properly to our complex and lengthy requests. Some of them have had to deal with multiple Rule 9 requests not just from this module but from Modules 2 and 3 as well.

So, my Lady, there is no, now, real issue in relation to the provision of material by material providers.

The second aspect of this issue is as follows: three Rule 9 recipients in particular were insufficiently rigorous in their supply of potentially relevant documents. In short, they provided too much. They provided large numbers of what turned out to be irrelevant or wrongly directed documentation.

My Lady, that possibly was borne out of an overeagerness or just a failure, administratively, to think more carefully about what they were doing. In one case, the material that we were provided with failed to specify whether it was related to Module 1, 2 or 3, although there was no doubt, as it subsequently turned out, what the Module 1 material was.

In another case, one material provider provided over, I think, 13,000 documents in a three-week period. My Lady, as I say, such responses were not borne out of malice or evasion but were simply a failure to properly appreciate what the nature of the obligation was on them, and to spend perhaps insufficient time thinking about what it is that we needed from them.

The Module 1 Inquiry solicitor team, in the form of Messrs Carlyon and Davies and Ms Bailey, have met, in fact, many of the material providers and have been astute to keep them on the straight and narrow. They have sent multiple letters concerning prospective deadlines, and multiple letters have gone back making even more clear what documents we expect to receive and making further inquiries. They, my Lady, have been rightly critical of any departure from the material expected from the material providers.

In the case of the three departments or bodies to whom I made reference, we have met with all of them, and we have had constructive conversations as to how disclosure must be managed, and those processes are now firmly back on track.

So, my Lady, coming to the heart of the submission made by Mr Weatherby, there is, in our submission, no need for position statements from the material providers. Such statements would simply replicate in different form and to no purpose whatsoever the information that is already contained in the responses and in the disclosed documentation. Imposing on the material providers the obligation to provide position statements as to where their documentation takes them would also consume limited time and resources that are, frankly, more importantly directed towards complying with the remaining disclosure requests. So we would invite you not to take up that suggestion.

Point 6 concerns the general issue of the nature or level of disclosure from the devolved administrations. A point has been raised as to how far we have been able to get in terms of getting disclosure from devolved administrations. A very significant number, as you would expect, of Rule 9s have been issued towards the devolved administrations, but it just so happened that many of those Rule 9s happened to be issued somewhat later in the process of seeking disclosure. So the disclosure from those Rule 9s falls to be made correspondingly a little later in the process. But I can say that the core participants are about to receive very significant disclosure imminently from the devolved administrations.

The joint submissions from Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice raise, at point 7, an important point concerning the pre-witness evidence proposals. So, my Lady, those two groups have expressed concern about our proposal that there be an additional post-evidence proposal but in advance of the witness giving evidence, by which the core participants can raise, one further time, issues that they feel must be put to witnesses by Counsel to the Inquiry but which have not found favour as a result of their contribution to the witness evidence proposals. In other words, this additional process by which, if they fail to persuade us of matters which must be put into the witness evidence proposals, they have an additional route by which they can repeat their requests, they can seek to change our minds as to what needs to be put, and of course contribute in a second way to the process of deciding what issues need to be raised with the witnesses.

My Lady, in response to what’s said in the written submissions, can I be clear: it was not meant to be an additional administrative burden, as has been described. It was intended to afford an additional route by which the core participants could metaphorically bend Counsel to the Inquiry’s collective ear. It may also assist if I confirm that the process is optional. If the core participants feel, as part of the witness evidence proposal process, that Counsel to the Inquiry have taken into account properly, as they see it, the points that they’ve raised, and that it is clear that the issues that they want us to put to witnesses will be therefore put to witnesses, then they needn’t, of course, return to the fray and seek to re-persuade us of the merits of their arguments.

So this process is optional, it wasn’t meant to be prescriptive, and the proposed template was suggested simply to ensure that there is a consistency of approach in the points that are made to us.

There is, contrary also to a further submission that’s made, no question of Counsel to the Inquiry reading out robotically the written questions that may be provided as part of this secondary route.

The process, which is not required in the rules, was offered simply so that core participants could better inform us of their views. But the submissions, my Lady, are advanced in such a way as to appear to suggest that what is really sought by the two groups is a general indication from you that the Inquiry permits them, and you permit them, to be allowed to ask questions of each and every witness under Rule 10(4) and that you should give that indication in advance of the witnesses giving evidence.

We would invite you not to give any such indication. The law, that is to say Rule 10(4) of the Inquiries Rules, does not of course give core participants the right to ask questions of witnesses; your permission must first be sought. And I need to make plain: that is the law; it is not simply a position adopted by your Inquiry.

Such applications for permission to examine or allow the core participants themselves to examine witnesses are obviously more sensibly made once the witness has given evidence and has been examined by Counsel to the Inquiry, because it is only at that point that it will become clear what further areas may arguably need to be examined, what areas the core participants feel have not been properly put, and whether or not they feel that Counsel to the Inquiry has not discharged the obligation of sufficiently scrutinising the evidence of the witness.

In other words, each application must be considered on its own merits and in light of what the witness has actually said. So, logically, my Lady, that precludes the giving of an across the board permission in advance of the evidence even being heard.

What can be done, however, of course, is that where there are particular issues for particular witnesses, where there is a clear argument, probably as a result the overriding importance of that issue to a particular core participant, that the core participants should be able to ask questions themselves, as I say, in reflection of the vital nature of the particular point, then we may indicate in advance of the witness giving evidence that that is likely to be something that will find favour with you. But we cannot gainsay your decision, and we cannot gainsay in particular your decision prospectively. You must have the ability to decide in respect of each witness whether or not such permission should be given under Rule 10(4).

So, my Lady, those are our submissions in relation to that point.

Point 8. The Bereaved Families for Justice Group UK have written to the Inquiry enclosing a list of 21 bereaved family members whom the group believes should be considered by the Inquiry and called to give evidence in Module 1. My Lady, as you know, the schedule in the letter summarises the evidence that the group believes that those family members can give. The summaries describe in unambiguous and distressing terms how their loved ones suffered and died, and in most cases, their opinions – that is to say the opinions of the family members – as to why they believe that the hospitals and care homes, the emergency services, the procedures, the protocols and equipment, or the PPE and testing processes, among many other matters, were woefully unprepared or inadequate.

The letter states its authors’ belief that such evidence is relevant and admissible in line with what it says is, and what obviously the authors of the letter believe, is the Inquiry’s stated approach to call family members in all modules.

My Lady, you have already ruled on whether such evidence can be called. At paragraph 40 of your ruling on 16 October, following the first preliminary hearing in this module, you said in line with the terms of reference which stipulate that the circumstances of individual deaths cannot be examined, that:

“Evidence of circumstances of death should only be admitted in this and later modules if it is relevant to possible systemic failings.”

My Lady, in our submission, but again as with all these matters, it is entirely a matter for you. This evidence of single deaths, however compelling and terrible – and it is – is unlikely to be able to demonstrate that there were systemic failings as opposed to there having been a failure to prevent that particular death. You made clear that you needed no persuading that bereaved family members may well have relevant evidence to give on possible systemic failings, and you will recall from the argument, you gave the example of widespread use of Do Not Resuscitate notices. If so, such evidence can be called in the healthcare module to give evidence, and to give important evidence to you, of the circumstances of those loved ones’ deaths, because the evidence of itself will say something about, in that particular case, the widespread use of Do Not Resuscitate notices, and of course illuminates the approach to such notices that was taken by hospitals.

But such evidence of how loved ones died, even when coupled with the absolutely understandable and hugely moving views of the makers of the statements as to why they died and why they believe that the deaths were contributed to by failings, doesn’t go to Module 1. Module 1 is concerned primarily with the period of time from June 2019 to 21 January 2020 and is examining, and I paraphrase of course, in general terms, the UK’s structural preparedness and planning.

Module 1 obviously includes issues as to whether or not the risk of a coronavirus pandemic was properly identified and planned for, and whether the United Kingdom was ready for such an eventuality. But the module is looking at the UK’s preparedness for whole system civil emergencies. And whilst that includes resourcing, the system of risk management, pandemic readiness, it is not concerned with what the impact was of the pandemic, in reality, once it had struck, or with operational preparedness.

So, my Lady, the Inquiry team proposes – but of course, again, I emphasise it’s a matter for you – not calling significant numbers of such persons in Module 1 for the principal reasons that I have set out. But instead we propose to call a single witness from each of the bereaved groups at the end of the Module 1 public hearing to ensure that we and the public are all powerfully reminded of the pandemic’s destructive impact and the terrible losses that were suffered. As the Inquiry moves from examining, in a general sense, the state of preparedness to examining, in the next module, the arrival of the pandemic and the United Kingdom government and the devolved administrations’ responses.

Let me also make clear that of course it remains open to you at any time and throughout the Inquiry to call evidence from bereaved families in relation to later modules, because those modules, as I have endeavoured to explain, are more directly concerned with impact.

In short, bluntly, Module 1 is not concerned with impact; it is concerned with the anterior state of affairs, the structural examination of our countries, in advance of the pandemic striking.

My Lady, I wish also to add – and I’ll come back to this later in my submissions – each of the public hearings will begin with a reminder of the devastating impacts of the pandemic, because you have directed the Inquiry to prepare films bringing the voices and faces of those who were affected so terribly directly into the hearing room. I’ll come back to that later.

So, my Lady, those are our submissions in relation to this important issue concerning whether or not you should call a significant number of witnesses in relation to individual deaths from bereaved groups, but in particular the two groups who made those submissions and the one group that sent the letter.

Point 9, my Lady, concerns a point raised by the Scottish Covid Bereaved. The Scottish Covid Bereaved raises a very good point which is whether or not, if relevant further information comes to light after the witness has given evidence, you would recall the witness. My Lady, in our submission, the position that you are likely to take and should take is that you should recognise and confirm that you do have of course a power to recall witnesses, because you have a very wide discretion to call any witness at any time on any topic. But I imagine that you would consider exercising that power, of course made on application, only if the circumstances warranted it. It would obviously be invidious if multiple numbers of witnesses were recalled, because there simply wouldn’t be the time allowed in the process for such evidence to be reheard.

My Lady, then turning to, finally, some specific forensic or evidential points which have been made, point 10: the Covid-19 Bereaved Families for Justice Group and the Northern Ireland Covid-19 Bereaved Families for Justice Group ask to what extent Northern Ireland has been covered in our existing expert evidence on preparedness.

My Lady, the issue of preparedness of Northern Ireland has naturally been extensively addressed in the Rule 9s we’ve sent out. In no particular order, we’ve sent reminders to Disability Action Northern Ireland, the Northern Ireland Chief Medical Officer, the Northern Ireland Department for Finance, the Northern Ireland Department of Health, the Executive Office, the NIEPGs, the Northern Ireland Emergency Preparedness Groups, the Northern Ireland Council for Voluntary Action, the NILGA, that’s to say the Local Government Association, and the Public Health Agency. Follow-up letters have been sent to the Executive Office, the Department of Health, Department of Finance, the Department of Economy, DAERA, that’s the Department of Agriculture, Environment and Rural Affairs, the CMO and the CSA, the Chief Scientific Adviser, and the Public Health Agency.

I do acknowledge that Northern Ireland has not been extensively covered in the report from Bruce Mann and David Alexander to the same extent as the United Kingdom and the other devolved administrations. But that said, there are, my Lady, multiple references in their report to Northern Ireland, and I shan’t read them all out, but they cover such matters as a high level overview as to how civil contingencies are devolved in Northern Ireland. They deal with the Northern Ireland Executive response to pandemic planning. They deal with the ConOps, the Concept of Operations for Northern Ireland, the contingency structures, the Department of Justice’s approach to obtaining information about civil contingency matters, the recommendations on imposing legal duties, and they are able to advance recommendations for your consideration in relation to Northern Ireland in just the same way as they do in relation to the other administrations and to the UK Government.

My Lady, nevertheless, we have sent Messrs Mann and Alexander, the corporate statement which the Northern Ireland Covid-19 Bereaved Families for Justice Group kindly provided, as well as their submissions from the last preliminary hearing and this one, in order to get from them their thoughts, and so we await their response to that.

Point 11. Covid-19 Bereaved Families for Justice Cymru asks whether former senior Cabinet members have been Rule 9ed in Module 1. My Lady, we’ve sent Rule 9s to a significant number of Welsh politicians, including Mark Drakeford, of course the First Minister for Wales, Carwyn Jones, the former First Minister, Vaughan Gething, the Minister for Health and Social Services until 2021, Rebecca Evans, the current Welsh Minister of Finance, Ken Skates, the former Welsh Minister of The Economy.

Twelfthly, Covid-19 Bereaved Families for Justice Cymru seek clarification as to the extent to which the expert evidence generally covers the devolved administrations, but in particular Wales, and in a similar vein, my Lady, Public Health Scotland have asked about the extent of expert evidence covering public health and Scotland. I’ve already addressed the particular position of Northern Ireland in relation to the earlier submissions from Covid-19 Bereaved Families for Justice.

My Lady, in a general sense, the expert evidence does properly cover all the devolved administrations, and I addressed you on that issue, in fact, at the last preliminary hearing. But not all the expert evidence can cover the devolved administrations to the same degree. Much depends of course on the issue and of course on the nature of the expert’s subject matter that is the subject of the reports.

So, for example, the report from Professor Whitworth and Dr Hammer in relation to biosecurity, biosecurity and biosecurity issues generally concern the United Kingdom as a whole, and therefore it’s difficult to see how extensive devolved administrations’ specific angles might be culled from the material and from the issue of biosecurity for separate specific consideration.

Bruce Mann and David Alexander’s report, as I’ve said, provides extensive overviews of the devolved administrations structures and some consideration of their distinctive features, and their generic umbrella recommendations apply to United Kingdom Government as well as the devolved administrations.

Sir Michael Marmot and Professor Clare Bambra have been provided, as I said, with additional specific questions and comments from the core participants, including those, as I’ve said, from the Northern Ireland Bereaved Families for Justice Group, but the reality is health inequalities, to a very large extent, are common between the nations and are therefore dealt with by them in a similar manner.

Finally, Dr Claas Kirchelle, his draft report has not yet been received, but Covid-19 Bereaved Families for Justice and the Northern Ireland Covid-19 Bereaved Families for Justice Groups have expressed their satisfaction that his instructions, in relation to the history of public health bodies and pandemic preparedness, are adequate.

My Lady, I must say, though, in relation to Dr Kirchelle, he is an acknowledged expert on the history of public health in England and Wales, and he doesn’t claim and therefore he can’t advance an identical degree of expertise in relation to Scotland and Northern Ireland. But he has assured us that he will be able to answer the questions put to him in relation to all the DAs by virtue of drawing, to a considerable extent, on all the published material with which he is, of course, very familiar.

My Lady, in a general sense, it may be worth noting that it’s unlikely that there could ever be parity in terms of the amount of material, expert report and witnesses in respect of the devolved administrations by comparison to the United Kingdom. Systems were necessarily different, and in some cases they are smaller and less extensive.

So, for example, it’s clear from the material that we’ve received from the Scottish Rule 9 recipients that there is no general Chief Scientific Adviser type figure in Scotland who is properly involved in pandemic planning and preparedness. There is only, or was only, the Chief Medical Officer at the time, Catherine Calderwood. So it’s futile to look to see whether or not the CSA structures, which can be seen at the UK level, are replicated in the devolved administrations, in that case in Scotland.

My Lady, finally, in relation to the last forensic issue, point 13, the Trades Union Congress asks for a list of the bodies that the Inquiry will be examining in Module 1 and also seeks further information on Dr Kirchelle.

The short answer is that the majority of the bodies to which the TUC refers are referred to, to a greater or lesser extent than the Rule 9s, and so will be the subject of examination, albeit to differing levels, in the course of Module 1. Public Health England and its counterparts, it’s obviously an important area. In relation to the Health and Safety Executive, we did in deference to the TUC’s urging send a Rule 9 to the HSE, but it may prove to be the case that they’re not particularly within scope.

Local authorities have not received Rule 9s directly, but the position of local authorities can just as efficiently be addressed by way of the Rule 9s that we have sent to the overarching bodies, that’s to say the Local Government Association, the Welsh Local Government Association, the Convention of Scottish Local Authorities, the Association of Directors of Public Health, the Northern Ireland Local Government Association, and the National Police Chiefs’ Council.

Similarly, there was simply no point, and it would have been a particular drain on resources to send Rule 9s to each local resilience forum when we had the option, which we took, of making enquiries about local resilience forums via the Local Government Association, the Welsh Local Government Association, the Convention of Scottish Local Authorities, and the emergency preparedness groups, and so on.

As for Dr Kirchelle, the Inquiry team in fact assembled some material when it was considering recommending to you that he be instructed. That material, as well as his online CV, can be made available on request.

So, my Lady, that brings me to the end of our submissions in relation to all the points raised in the various written submissions, bar one: Every Story Matters. Would you wish me to address you on that now, or would you wish to give the stenographer a …

Lady Hallett: If you could complete your submissions, Mr Keith, and then we’ll take a break.

Mr Keith: So turning to Every Story Matters, my Lady, you’re aware that this isn’t of course part of Module 1, but in deference to the fact that Mr Weatherby and Mr Lavery say in their submissions that it has provoked – and I quote their words – on behalf of those whom they represent more anxiety and questions than any other topic, I must address this issue too.

My Lady, the first point that they make is that there is still no single place, whether a document or an online note, where the bereaved families can find out who will be involved, how it is intended to operate, what the timescales are, how the trauma-informed approach will be ensured, how the process will be accessed, and so on.

In your 17 February ruling, following the second preliminary hearing in Module 1, you directed in fact that the Inquiry team consider if there are ways in which we could better improve, or improve our communication, in terms of setting out this information.

I must say that a very significant amount of information has been made available through emails and letters, meetings with the leads for Covid-19 Bereaved Families for Justice UK and other groups.

The Inquiry has met with over 100 organisations, in fact, to engage with them on the design of Every Story Matters, and that has naturally included individuals who experienced bereavement during the pandemic, as well as representatives from healthcare, trade unions, equalities, children’s groups, young persons’ organisations, and so on, in all four nations of the United Kingdom.

Most importantly, there were two webinars held in March 2023. My Lady, these were attended by Covid-19 Bereaved Families for Justice, Covid-19 Bereaved Families for Justice Cymru, Scottish Covid Bereaved, Long Covid groups, and 17 other organisations. They raised a number of issues and concerns in the course of the webinars, and these were addressed by the Inquiry team who were present.

A transcript, certainly one of the webinars, detailing everything that was raised and the responses from the Inquiry is available online and was also sent to the lawyers for some of the campaign groups. Information about the webinar was also made available through the Solicitor to the Inquiry update, and there is information about Every Story Matters in those updates too.

But, my Lady, I am nevertheless very sorry that some of the core participants, according to their legal representatives, believe that there is still an absence of a clear and definitive guide to the Every Story Matters process.

My Lady, you have directed that all the information relating to Every Story Matters be brought together into a single document and that that be published straightaway. That letter will be published later this week.

My Lady, Covid-19 Bereaved Families for Justice UK and the Northern Irish group also asked for details of how the targeted research part of Every Story Matters will work. My Lady, as you know, this very substantial project comprises a number of parts. All of them are designed to allow as many ways as possible for members of the public to tell their stories. The targeted research is part of this.

Standing back, and addressing some of the parts of the Inquiry, a pilot online form has been available since November last year, and over 5,500 people have already shared their stories with the Inquiry through that online form.

However, a new and improved form will launch in May. It incorporates a number of changes which have been made following feedback from organisations and individuals, including from the bereaved groups, who took part, and we’re very grateful to them in user testing.

So there will be a range of accessible versions of the form, in multiple languages, and a phone line will be made available to offer help in completing the form. It will also be possible to complete the form in paper format and to send it by freepost to the Inquiry. There will be a public information campaign to encourage participation in Every Story Matters, and that goes live in June. It will include radio advertising, print advertising, printed and digital billboards, adverts on selected websites and on social media, and the utilisation of links for the multitude of specialist groups.

Turning to targeted research, this has already been explained in the webinars and the meetings with the campaign team groups – well, the campaigning group teams. It is a process of approaching people, designed to ensure that the Inquiry hears from those from whom we particularly need to hear, the seldom heard, the vulnerable, or difficult to reach communities. And how it works, and is intended to work, is that the Inquiry has drawn up, and will continue to draw up, categories of persons defined by particular demographics, experiences or impacts, or by reference to why their stories are of particular assistance to the Inquiry, whether it be because they suffered in hospital or in care homes, or because they suffered bereavement or other loss or harm, through vaccines, the application of PPE, as a result of failings in Test and Trace, and so on.

Those experiences, the impact on individuals of the pandemic and/or bereavement and of treatment in hospital and so on is of vital concern to the Inquiry and to Every Story Matters. But they must be chosen according to some sensible methodology because we must have, at the same time, a representative mix across all regions and nations of the United Kingdom, mixes and a proper representative mix across gender, age, ethnicity and other demographic factors.

So that, my Lady, is all that the phrase “key lines of inquiry”, a phrase that was used, in fact, in the webinar, means. Obviously Inquiry staff, including the lawyers, must have a hand, and have a hand already, in drawing up the particular categories.

154 interviews have already taken place with members of the public who have stories to tell but which are particularly relevant to identifying these key lines of inquiry. The Inquiry anticipates that, as part of this targeted research part of Every Story Matters, hundreds more interviews will take place this summer and thereafter.

The interviews are being carried out in accordance with specialist advice given to the Inquiry by experienced community researchers who are specifically trained in the compassionate use of information and who apply what is known as a trauma-informed approach.

So, my Lady, there is a very extensive process already in place which will continue to be developed, and as part of that process, there is a targeted research which ensures that the Inquiry reaches out to the public and is not just reliant upon their response by way of online or paper returns.

A final aspect of Every Story Matters that I want to mention is the introduction of community events or community listening events. So the Inquiry learned from consultation last year the value of hearing from people in the community and in person. Community events will be set up – these will follow later in the autumn – and what they are intended to provide is an opportunity by which members of the community, particularly those affected by the pandemic, bereaved, ethnic minority groups, young persons, people in care homes, the clinically vulnerable, long Covid sufferers, can engage with the Inquiry in a community aspect as part of a listening event.

Again, a great deal of care has been taken to ensure that as many as people in a representative way can be approached and can be encouraged to take place in this process as possible.

To do that, my Lady, we need expertise that simply doesn’t exist within the Inquiry team. So as part of the pilot process which has been in place up to now, of course companies were approached and sought to be engaged and contracted to help us with our work. The pilot stage being about to end, we hope to sign new contracts in the next couple of months for the remainder of the Every Story Matters process. Those new contracts, which I emphasise are yet to be awarded, will replace the current contracts with Ipsos and M&C Saatchi – you will recall that M&C Saatchi is the entity which subcontracted elements of its work to 23red. All those contracts end on 31 May.

Finally, in relation to Every Story Matters, I need to say that, my Lady, you have directed the setting up of an ethical advisory group which is intended to provide an ethical review of the research, design and the approach, all the matters to which I’ve made reference, the key lines of inquiry, the need to find a proper representative mix of the entire nation, and it will examine and scrutinise the approach taken by the Inquiry to Every Story Matters. That group will be chaired by Professor David Archard of Queen’s University Belfast.

Commemoration, and this is the last issue, my Lady. We have been working with the core participants and organisations to make sure that we recognise and acknowledge the human impact of the pandemic as part of your proceedings. One of the ways in which we have been working with organisations to represent the human impact of the pandemic is by way of the commemorative art installation in the form of a tapestry. So, my Lady, as I’ve said before, and as you have noted, each panel in the tapestry will be designed by a different artist working in collaboration with a particular group or community of individuals.

The tapestry panels will be unveiled at the hearing centre in June in time for the first public hearing, and the thread and the linen making up the tapestry will be sourced from all four nations in the United Kingdom. Digital access to it will be provided later in the summer to enable those not present at the hearings to both view and read the stories behind the panels.

Following invitations to the bereaved families and other core participants in February, as I mentioned earlier, filming has also begun on the human impact films to be played at the start of all the public hearings, including Module 1. So a different film will be played at the start of each module, and it will feature people talking about their experiences and the emotional and other terrible impacts that the pandemic has had on them. Those filming sessions are taking place across the United Kingdom.

My Lady, your Inquiry reached out to and arranged for meetings to be held with the leads of the bereaved groups, including Bereaved Families for Justice UK, to ask for their support in finding people who would either be willing to be filmed for the videos, or actually to speak to and help the artists to shape the tapestry. The Inquiry will also be writing to all core participants with the dates of further filming days in May in London and in the Midlands, and we would simply ask interested core participants to submit volunteer interviewees and to email the Inquiry’s engagement email address which will be provided with the filming dates. My Lady, we need their help, and we ask them to help us to deliver the Inquiry that you have set us upon.

So, my Lady, those are all the submissions that I make in relation to actually the many matters raised by the core participants. And I repeat, we’re very grateful to them all for the way in which they’ve put those points, all of which are thought provoking and none of them unimportant, but I hope, my Lady, that that answers the points that they have made.

Lady Hallett: Thank you very much, Mr Keith. We shall break now. I shall return at midday.

(11.43 am)

(A short break)

(12.00 )

Lady Hallett: We may be just slightly early. Mr Weatherby, I can see you. You’re there and ready to go.

Submissions on Behalf of Covid-19 Bereaved Families for Justice by Mr Weatherby

Mr Weatherby: Thank you, and almost good afternoon.

Can I start by reiterating that the Covid-19 Bereaved Families for Justice UK campaigned for a very long time for this Inquiry to be established, and it has no interest other than in assisting the Inquiry to work.

In so doing, the families wish to be allowed to effectively engage with the process and take as full a part as possible themselves and through their representatives, and that’s what underpins these submissions and all others that I make.

We thank Mr Keith for his explanations this morning, much of which was new to us, and I will endeavour to tailor my submissions accordingly.

I must say at the outset, despite the upbeat way in which Mr Keith has put the preparations, that we do have some significant concerns about the progress towards the start of Module 1 on 13 June. So I’ll adopt the same headings that Mr Keith has gone through this morning, so I’ll start with the list of issues.

We welcome a number of the amendments that were made following the submissions from ourselves and other core participants. As you’ve heard, we raised three further points in our written submissions at paragraph 2. We noted the amendment to expressly include consideration of structural racism within Module 1, and we raised the point – as you have been told this morning already – that the Inquiry, being in the process of instructing an expert to address structural racism in Module 2, that we had asked that that report should cover Module 1.

Again, a reminder has been made that you indicated in your ruling that you would consider the issue with respect to other modules, and we’re asking you to do that here with respect to Module 1, not least because of the amendment that you’ve made to the scope.

First of all, because that seems to be logical, and we have always struggled to see how the issues of structural racism could be considered in Module 2 without the expert considering how it affected preparedness.

We hear what Mr Keith says regarding professors Marmot and Bambra and dealing with these issues in Module 1, but for the stated reasons, having decided to instruct dedicated experts on this issue, we urge you to consider that they would be the best experts to deal with these matters with respect to Module 1 as well.

The second point, a short point, is that we did raise a number of issues in our submissions on the scope. Some of them were dealt with; some of them weren’t. We suspect, as Mr Keith seems to have confirmed this morning, that many of them were considered within scope. We will take that up, if we may, with your team just to confirm whether in fact any of them were considered out of scope. It would helpful to know.

The third point is a more substantial one about the ambit of public health preparedness and whether it will cover preparedness of the health and social care sectors, so in short order, hospitals and care home emergency planning and preparedness. We think it is vital that they are included in Module 1 at a high level, not least because we know they’re not covered, properly not covered, in our submission, in the provisional scope of Module 3. So if they’re not covered in Module 1, where would they be covered?

We had some discussions yesterday between counsel, and we thought in fact that the health and social care preparedness was going to be included at a high level within Module 1, to include hospitals and care homes at a high level rather than an operational level. But we’re less sure this morning, from what has been said.

We fully understand that Module 1 shouldn’t delve into individual facilities, but we do think that it should cover the overall preparedness of the NHS and the healthcare systems within each of the devolved nations and jurisdiction, and also the position within the social care sectors, particularly but not exclusively with respect to care homes.

So just by way of a couple of examples, we would say that Module 1 should deal with things like the planning and preparedness of bed capacity in the event of a pandemic within the healthcare systems, and it should consider things such as the planning and preparedness for discharges and transfers between hospitals and the social care sector and things like that, where – albeit we’re cognisant of the fact it shouldn’t go into individual hospitals or care homes or specific facilities – but if not here, where will that be dealt with, is the way we would put it.

Lastly, in respect of scope, Mr Keith again has referred to the devolved nations and jurisdiction, and we note the expanded reference within the list of issues. However, as we’ll come on to – and again Mr Keith has touched on – this welcome expansion in the language of the list of issues is welcome, but it isn’t currently matched by the extent of the disclosure relating to the devolved preparedness, and we think that that is a significant problem. Now, Mr Keith has indicated this morning that we’re imminently to receive a large amount of such disclosure, and we hope that comes to reality.

With respect to this topic, given the amount of ground I’m going to cover, I’m going to defer to Mr Lavery, and I think Ms Heaven also is going to follow in on aspects to do with Northern Ireland and Wales with these in mind.

We also do raise the issues about expert assistance with respect to the devolved issues on Module 1. We do welcome the instruction of Dr Kirchelle, which may assist with the concerns to some degree, but again I’ll leave it to others to add flesh to those bones.

In respect of Rule 9s and witness statements, I’m really going to concentrate on the witness statements rather than the Rule 9s. At paragraph 6 of our written submissions, we noted that by the date of that submission, last Wednesday, 19 April, we’d received only four witness statements relating to the witnesses who are on the Inquiry provisional Module 1 witness list. So it’s all very helpful Mr Keith has gone through the wider picture of how many witness statements are extant and where we’re up to with them, but to us, the concentration ought to be on the fact that we have received such a small number of witness statements from the list of witnesses who the Inquiry team currently intends to call in only a few weeks’ time.

I note that since last Wednesday, we have had one further statement, so currently we have five out of, I think, 58 non-expert witnesses provisionally expected to be called, and that list also refers to the fact that the list will get longer. At item 25 of the list, it refers to an unknown number of individual scientists who will be added, and again it doesn’t include witnesses that we may suggest or have suggested or indeed other CPs have suggested. So the position is, in our submission, quite significant.

Also, although we have had these five witness statements, there are a number of key figures, for example Mr Hunt or Mr Cameron, who are on the witness list, so they are very important witness statements that are awaited, and that gives us cause for concern.

We note that the CTI note on 6 April at paragraph 17 said that the Inquiry anticipated receiving and disclosing more statements over the course of that week, and that at 17(b) it indicated sensibly that the Inquiry team would prioritise disclosure of the witnesses on the provisional list. Here we are three weeks later, and only one more has been disclosed from those that are on that list.

So it’s not the absolute position that concerns us, not only that, but it’s the fact that the expectations of CTI, with respect to progress on that front, do not seem to have been realised, at least within that timeframe.

The next point is that in the note, and it’s at paragraph 4 to 8 of the CTI note, that it’s stated that:

“Perhaps a substantial number of the witnesses on the provisional list will be receiving further Rule 9s.”

So (a) we haven’t got most of the witness statements, and (b) there’s still further requests going out to those witnesses. So that’s, again, a factor of real concern to us, of the Inquiry being able to be properly ready by mid-June.

As Mr Keith mentioned, we’re asked to comment on the witness list by Thursday. That’s going to be very difficult when we have only a handful of the witness statements. We don’t have the Rule 9s, as a fact, and therefore not only do we not have the statements but we don’t know what is expected to be within the statements, which would have been a help in commenting on whether the ambit of the provisional witness list is wide enough or not.

Again, we did speak to Counsel to the Inquiry yesterday about this problem, and we note that they’re sympathetic to our predicament in commenting on the list by Thursday, and we’re grateful for that. But the timescale – general timescale is of course incredibly tight, so the solution to this is quite difficult to see at the moment.

A further additional problem to that is that on the current timetable, we’re to receive and start to respond to evidence proposals for those on that list from 15 and 22 May respectively. Translating that, it is 12 and 17 working days away, respectively, and that is a very short period of time when, again, we don’t have the statements or indeed some of the documentation. So we’re to respond within two days to the list, we’re then to respond within 17 working days to evidence proposals, and we don’t have the statements of most of those witnesses, and indeed we don’t have a timetable either.

Turning to the issue of the content of the corporate and other witness statements themselves, we again note Mr Keith’s reassurances this morning, and indeed we had similar reassurances yesterday in the conversation that I had with him. From the CTI note, it appears that multiple central government departments have failed to respond adequately to the requests made. At paragraph 6 of the note, referring directly to the central government departments, CTI said:

“A considerable number of the statements contained insufficient detail and posed more questions than they answered. The Inquiry considers that it should have been clear to those organisations that the statements simply would not provide the Chair with the detail that she will require in order to consider their responsibility for and involvement in the matters set out in the Inquiry’s provisional outline of scope or its Rule 9 requests.”

Of course, we read that with considerable concern. In our submissions about position statements back in September, we noted – and again I quote that:

“Position statements ensure a comprehensive account provided openly and at an early stage and avoid the issue that can otherwise arise in which organisations remain silent on matters until they are asked, creating delay and an appearance of evasion which assists neither the Inquiry, CPs nor the wider public.”

Unfortunately, that submission appears to have proved prescient. Let me make the point clear, as I hope we did in our written submissions. When you consider position statements, you describe the aim as laudable but considered there was a better way of achieving the same thing. At least from CTI’s note, it appears that that other way has been frustrated.

The note, as I’ve read, asserts that the deficits in those statements should have been obvious to those organisations. I’d add to that that central government officials answer such requests through their lawyers, and therefore there really is no excuse for any failures to address matters.

We don’t have the Rule 9s, we don’t have more than a handful of the completed statements, so it’s not clear to us in what way the central government departments have failed to properly respond, other than that account given in the note. We are given today some reassurance and a different emphasis, if I can put it that way, on the problem. But we haven’t in fact seen any fruits of those assurances, and we fear that there will be a dragging of heels by certain of the material providers, and that may be a continuing feature of the whole Inquiry unless this matter is brought out into the open.

The words used in the CTI note indicate this as being a widespread problem, not one confined to one or two statements, and, as I’ve said, the note pulls no punches in asserting that the problem should have been clear to the departments and, of course, their lawyers.

The fact we’ve received such a small number of statements indicates the problems that this has caused or exacerbated. The note was forthright in its criticism of, effectively, the lack of co-operation, and it generated the need for more requests. Although it’s welcome that CTI reports progress has been made, the proof will be when we see the statements, which of course we haven’t yet.

So we submit that the Inquiry should consider three things: that where it is apparent that there has been a failure to comply and thereby either caused – or, in fact, caused significant problems for the Inquiry, those departments or organisations should be asked to account for that, and those explanations should be disclosed.

Secondly, there should be open and transparent directions setting out what was originally requested of them and what has now had to be further requested and the deadlines set.

Thirdly, as we’ve said in writing, and Mr Keith turned to earlier, there should be further consideration of whether requiring position statements, even now, might be a way forward, a process which we’ve indicated we’re more than happy to assist with. We say “further consideration” because we don’t know what was and wasn’t included in the requests to the departments or the deficits within what they did in fact reply. So we’re not, certainly not, asking for any repetition – they may not be necessary. But a critical issue to us is whether the organisations were asked to proactively address what they acknowledge went wrong or should have been done differently or better in terms of their planning and preparedness, and what they say are the lessons already learned. The answer to those inquiries has the potential to help the Inquiry really cut to the core of the issues rather than to end up searching for needles in the large number of documents that are the haystacks that have been provided to the Inquiry.

We’ve seen little evidence that those questions have in fact been asked from the statements, or indeed answered, save perhaps in one statement which purports to address lessons learned.

In terms of disclosure more generally, I’ll deal with this shortly, having dealt with the witness statements or the lack of witness statements, we’ve noted that there is a substantial amount of disclosure remaining to be made, and Mr Keith has helpfully outlined how much there really is.

We note what CTI has said about the considerable amount of material being produced to the Inquiry without proper reference to the requests or the scope of Module 1, and in the written note there is reference to much of it being too “granular”.

We entirely understand the concept. It doesn’t assist the Inquiry or anybody else to just produce large quantities of material and dump it, effectively, on the Inquiry. Providers have to be responsible for determining in the first place what is potentially relevant. However, they can only do so if they have proper guidance and they’re clear what are the criteria. How is the material provided to determine what is too granular, and only through clear guidance and criteria set by the Inquiry team. Is there such guidance and criteria, and if so, can it be disclosed? What’s the process for checking that a consistent approach is being applied across the piece? And how can the Inquiry be clear that a consistent approach is being applied across departments? Disclosure of these matters is important not only for the Inquiry but also for core participants to be reassured that proper disclosure is being made and supervised by the Inquiry.

The fact that the Inquiry has such a massive task, has core participants coming from different directions, makes it very difficult for the Inquiry to ensure that proper disclosure is being made to it, and it’s only really by publishing the criteria for that which will make that process happen.

In terms of the Rule 10 process, or the questioning of witnesses process, again this morning Mr Keith has given considerable further information about the approach, which is very welcome indeed. We dealt with this in our written submissions between paragraphs 31 and 38. We’ve put forward a tried and tested process used at the Manchester Arena Inquiry, similar to some other Inquiries of which we have experience. Broadly, that’s the process that CTI puts forward as the first part of its proposed process at paragraphs 28 and 9 of the CTI note but undertaken in a shorter time period, over about 14 days prior to the witness actually giving evidence.

The solicitors to the Inquiry are familiar with that process, as they were also STI on the Arena Inquiry, and that process is straightforward. The Inquiry team provide the proposals, core participants respond, the Inquiry team review those responses, decisions are made as to changes to the scope of evidence and the topics each witness will be asked about and who will ask the questions. Where there are unresolved points about additional topics core participants raise, those generally can be resolved through dialogue between counsel, and then obviously you, as Chair, have the final say. In our experience, the process generally works with little or no need to trouble the Chair, because it’s iterative and it is a collaborative process.

The issue of who asks the questions has been raised, and the benefits of having more perspective than different voices have been made previously and repeated in summary in our written submissions. I don’t take that further. But in our experience, this process leads to a situation where core participants may well not seek to ask questions of many witnesses, not least because Counsel to the Inquiry will cover all the points, but where core participants do seek to explore particular topics, a proportionate and efficient approach can be taken through this process.

We take – we’re happy with what’s been said this morning by Mr Keith about that, and it appears that further consideration has been made, and there is the indication that there will be consideration given to core participants being able to take part in oral advocacy, and there can be discussions within this process. That’s precisely what this process does include, as put forward by ourselves in those paragraphs which, as I say, does considerably overlap with the initial parts of the process.

I’m grateful to Mr Keith also for his comments about the additional process added at paragraphs 31 and following of his note, described as the pre-Rule 10 process, because that to us is quite problematic, and it’s been explained that this additional stage is for us to persuade that more questions can be asked. We’re not aware of other proceedings where this approach has been taken, and with the greatest of respect, we think there’s a reason for that, because we don’t think it will work.

The witness proposal, the response to it, the review of that, and the further dialogue necessary is straightforward and resolves issues, in our submission. Another round with a second series of documents which, at paragraph 32, CTI indicates would be a further template or spreadsheet, but which they expressly say should specify not just issues or topics but the specific questions that we would seek to ask – that’s paragraph 32(b). – we say is just unworkable, that advocacy doesn’t work like that. In fact, if it did, we wouldn’t need oral questioning at all. One question leads to another or the end of a line of questioning. It’s organic. And so where the further stage delves into that level of detail, we say that it is not helpful.

We also note that the objections that we would have to this pre-Rule 10 process are also very practical. We note that where it’s operated before, the simpler process generally takes place over 14 days or thereabouts. This proposal would expand that something like four weeks. That would mean by the time that the first witness in Module 1 is called, on the approach as designed, with weekly witness proposals being disclosed from four weeks prior to the start date, there would be no less than five different weekly witness evidence proposals in process by the time the first witness is called. In our submission, that would be a recipe for chaos, and therefore we would urge the re-think. And, as I say, again, I’m pleased by the matter raised by Mr Keith about the reasonable discussions that can take place about other CPs taking part in the oral advocacy.

Can I finally turn to the issue of Every Story Matters and the witness evidence from the bereaved.

With respect to the Every Story Matters project, the commemorations and the proposed videos to be heard at the outset of each module, we’ve made various submissions. But in our current submissions at paragraphs 43 to 6, we really raise two key things: that firstly, a clear plan should be provided by the Inquiry as to how these projects are intended to work and to what end; and, secondly, that the position that has hitherto been extant that they are not part of the legal process should be dropped and there should be fuller dialogue and consultation with us as representatives of the bereaved about what the Inquiry is doing.

We have repeatedly made the first point, the need for a clear plan setting everything out, and we’re very pleased to hear that the Inquiry has now seen that this is the right course to take, and that is a big step forward, with respect.

Confidence in the Every Story Matters project by the bereaved families I represent is very low indeed. It’s therefore important that the plan that is set out is as comprehensive as it can be and, in our respectful submission, it should include how the material is to be gathered, who by, what expertise and training they are to have, how the process of the information gathered can be quality assured – we note that anyone can complete the online form even multiple times – and the product of it is to be anonymised.

We know, from the webinar transcript Mr Keith referred to, about the targeted qualitative research to be directed by the Inquiry team. We’re grateful for his further explanation about that, but it would be helpful to have that fully set out in the plan: the criteria set, again who will undertake it, and what is being sought.

We note also the ethics panel and the terms of reference regarding this targeted research. Again, we would like to understand that in greater detail, and it would have been helpful to have had dialogue about it before it was set up. So, as I say, we think it’s a considerable step forward that the Inquiry is going to provide this plan.

Once the information is gathered, the next part that we hope the plan will address is: what is to happen to it? How is it to be analysed and by whom? What experience and training will they have? What’s the object of the analysis? We’re told there is to be a series of research reports which will be adduced in evidence in each module. The webinar transcript confirmed that Ipsos would be doing the analysis. Perhaps that may not be fixed in stone, given what was said about the contracts. But what experience and expertise and training does Ipsos, or whoever does it – what do they have in that regard? It’s very important, and very important in terms of messaging to the bereaved but no doubt others as well, that this is not treated as some kind of market research and that the people who are doing it have training or expertise in dealing with the bereaved.

The transcript indicates that the reports should answer the key questions in each of the modules, that they will after a few months be reviewed as to whether there are further areas we, the Inquiry, need to explore.

The Inquiry is outsourcing the gathering of the evidence relevant to terms of reference in this sense, and having it presented in an anonymised way, and then considered in evidence. Apart from knowing who the analysts will be generically and their skillsets, we would also wish to understand who it is proposed will be the authors of these reports and how will the Inquiry be able to assess them, assess their weight, assess the reliability of the information within them. All of this is highly sensitive to the bereaved because, as we understand it, this will be an important part of their evidence.

The second point is perhaps more obvious, or just as obvious, and that’s engagement with us. We don’t dispute the fact that the Inquiry team or parts of it have engaged with some of the bereaved, including the Covid-19 Bereaved Families for Justice UK, and that’s to be applauded. But we have been told from the outset that this isn’t part of the legal process. We, as the representatives of the bereaved, have been told that, in terms, express terms, that it’s not within the tasks that we are permitted to undertake, and that, with the greatest of respect, has created some problems. And we particularly think and submit that it’s important that the Inquiry has dialogue over all of these matters with us as the representatives of the bereaved, and not in any way diminishing the importance of engaging with the bereaved directly themselves.

In terms of the other matters, in terms of commemorations and the videos, whereas we welcome the fact that the Inquiry is looking at commemorations and looking at the experiences of the bereaved and others in respect of the pandemic, we do remain of the view that the Inquiry should keep under consideration hearing directly from a proportional number of the bereaved in both of those regards. We understand the videos, for example, are going to be approximately 15 minutes, and we say that that is not an adequate way of presenting the effect of the pandemic on the bereaved, never mind others.

In terms of witness evidence, having looked at the Every Story Matters plan and engagement, I just want to address in short detail what we submit that the Inquiry should do in terms of direct evidence from family members going to the terms of reference.

It is entirely right what Mr Keith says, that you have previously indicated that you will take evidence from individuals where it sheds light on systemic failures. We’ve taken account of that. That was made clear to us in a follow-up letter from STI dated 8 December, and that’s why we have advanced this spreadsheet of a proportionate number of bereaved family members whom we say should be considered in Module 1 – as Mr Keith says, there are about 20 of them – and we currently intend to take a similar approach in other modules, and we’ve invited dialogue about that approach with your team.

We’re entirely on the same page as the Inquiry, as the need for evidence in each module to be sufficient but proportionate. We’ve made clear from the outset that we entirely, with respect, agree that the Inquiry must move as swiftly as possible but without cutting any corners.

In terms of the dialogue about witnesses, it seemed to us that the discussion is best undertaken in the light of the Inquiry’s list of provisional witnesses for Module 1. However, in light of the comments made by Mr Keith a little earlier, I will just take another minute or two just to address some of those.

We’ve expressly on this spreadsheet put forward a proportionate number of family members with regard to preparedness. We’re not asking the Inquiry to investigate the circumstances of the individual deaths of the loved ones of those bereaved persons.

I’ll give but one very short anonymised example. One of the witnesses we’ve put forward is a frontline doctor. She was at the frontline dealing with Covid. She also has relevant other experience in the army. She has evidence, illustrative evidence, of the lack of preparedness which we say should be heard. It should be heard because it’s important to Module 1 and to the Inquiry, but it’s also important in engaging family members in the evidence itself and having them valued before the processes, the evidential processes of the Inquiry, whatever other processes, for example, of Every Story Matters, are.

I think those are my submissions, and thank you for listening.

Lady Hallett: Thank you, Mr Weatherby.

I appreciate your concern about disclosure and people being ready by June 13, but I must say that I am determined to start this Inquiry on 13 June for reasons I’ve set out before because it is absolutely essential if I am to make timely recommendations, and by that I mean recommendations if not this year, certainly next year, that we get on with hearing evidence. So I will take a lot of persuading to postpone the start date. So I’m afraid everybody, including the Inquiry team, have to be aware of that fact, as I think they are.

As far as the additional informal process before Rule 10 is concerned, it is intended to assist core participants to participate effectively in the Inquiry process, not hinder. In fact, I believe that the first suggestion aired in public came from Ms Mitchell on behalf of the Scottish Bereaved. I understood at that time that it was welcomed. If that is not the case, then please remember, Mr Weatherby, that it is optional, and you only have to comply or engage in the informal process if you think it would be helpful to your representation of Bereaved Families for Justice United Kingdom.

As far as the Listening Exercise is concerned, I have listened to complaints that have been made in the past about the difficulty in obtaining the information you require, although I have to say when I made enquiries I discovered a very considerable amount of information available, but I do accept that it could be in one place, made even – given even more detail, to help those whom you represent understand what is happening.

A number of bereaved groups are co-operating with the Listening Exercise because they understand that this is our way of trying to ensure that people’s voices are heard.

I’m not sure what you mean about being informed the Listening Exercise is not part of the legal process, because I have always intended that my deliberations and my gathering of information and my conclusions and recommendations will be based in part on evidence I hear directly from witnesses during the course of the public hearings, and in part on the information gathered during the Listening Exercise.

So there are a number of ways in which people whom you represent, for example, can contribute to the Inquiry. There will be some who may well be called to deal with systemic failings. There will be some who may be called in later modules to deal with the impact upon them. There will be some who contribute by agreeing to be interviewed and filmed, and the videos will be played at each of the module hearings, and there will be some who will share their experiences with the Inquiry at community events, online, in person, on the telephone.

I’d just ask, Mr Weatherby, before you advance this kind of criticism of the Listening Exercise, for fear – I know you don’t intend this – but for fear of putting people off engaging, that people do check their facts and see whether or not there is the detail there that people need to understand the exercise.

I will need the engagement of members of the public in the United Kingdom if I am going to be able to produce conclusions and recommendations that, if implemented, could reduce the suffering of the kind that those whom you represent have already suffered for other people in the future. So I need as much assistance as possible, and I welcome your continued assertions that that co-operation will be forthcoming from the organisation that you represent.

Thank you very much, Mr Weatherby.

Mr Lavery.

Submissions on Behalf of the Northern Ireland Covid-19 Bereaved Families for Justice by Mr Lavery

Mr Lavery: Good afternoon, my Lady. I hope you can hear me.

Lady Hallett: I can. I see you on the gallery view, thank you.

Mr Lavery: My Lady, as you know and as I’ve pointed out before, I represent the Northern Ireland Covid-19 Bereaved Families for Justice, and indeed they are gathered today in Belfast to follow today’s events. Their organisation is an important support mechanism for them through this complex legal process, but also a very difficult emotional process for the bereaved families to follow this, and it has to be explained to them by us exactly what is happening at each step of the way.

They will welcome, my Lady, your robust approach towards the forthcoming hearing date, and it is their desire that the hearings should be taking place expeditiously and as quickly as possible. But it’s only right as well, my Lady, that we take this opportunity to highlight difficulties that we’re facing and that the process has not been straightforward so far, and from the perspective of the Northern Ireland families, indeed all of the bereaved families, that we have concerns about the rate of disclosure and the provision of witness statements. We see this as being a very tight process to be able to manage within such a short period of time.

In particular in relation to the extent of disclosure from Northern Ireland, and indeed all of the devolved jurisdictions, there is so far unfortunately a dearth of information, firstly as to what the Inquiry have, secondly as to what might be coming, and we say that in the context of the absence of Rule 9 requests and indeed what is needed.

There are five witness statements that have been made available, but the only one that relates to Northern Ireland that has been made available is the one that in fact our families provided to the Inquiry.

So I say that not to criticise, my Lady, but to give your Ladyship an idea of the scale of the task that we face in those circumstances and what we might face as a difficulty. And your Ladyship will understand that this hinders our ability to assist the Inquiry team and take part in the process in as meaningful and substantive a way as we would like, and indeed we hope that your Ladyship would like, and the Inquiry team.

So these submissions are, to some extent, a request for more inclusion. We adopt the submissions of Mr Weatherby. By inclusion I mean the Rule 9 requests, and I reiterate that, and indeed some input – more input in relation to experts. I’ll deal with that in the Northern Ireland context in a second. I won’t be speaking long this afternoon, my Lady.

But at the moment we currently face the prospect of being given material even after the Inquiry starts, and this is going to obviously present difficulties in terms of our input, our preparedness, and indeed, my Lady, what we can explain to our families as to what is happening and the context of all of that.

There may be material that emerges then in the course of evidence which unfortunately may lead to a greater number of requests to ask questions in a follow-up way under Rule 10. I welcome what Mr Keith said earlier, that there will be that opportunity to make such a request at the conclusion of evidence, but my concern is that we may be faced with more requests because of a lack of preparedness, in terms of rushing this module. I do not and my families do not want to have the date moved, my Lady.

We want expedition, but of course not at the expense of excellence or parts of the truth, and we appreciate that the task of the Inquiry, your Ladyship’s task and the task of the Inquiry team, is enormous. So the observations made by ourselves and Mr Weatherby should be seen in that context, and that we’re here to assist and ensure the Inquiry is as thorough and comprehensive and forensic as possible.

But in terms of witness statements, my Lady, our calculations – a rough calculation is that we have received about 12% of the overall statements of evidence. We have carried out an audit of the material that we have received by way of disclosure, and we will be writing to the team in detail identifying parts that we feel have been omitted, including reference to organisations and even body heads, which we’re not sure whether or not they have been included and to what extent they feel that their evidence may be relevant. This is not the forum, my Lady, to go into that in detail, and we will correspond with the Inquiry team about that.

Now, in relation to the expert evidence, we share the view with the other devolved jurisdictions that the expert evidence is then, in terms of dealing with the preparedness of the devolved jurisdictions and indeed Northern Ireland, and we welcome the acknowledgement of Mr Keith today of that fact and that the team have asked two of the experts to go back and prepare something on Northern Ireland and the devolved nations in particular.

There are matters that are cropping up in disclosure, my Lady, that we see as necessary in terms of dealing with Northern Ireland that do require, we say, specific input, analysis and comment from an expert that relate to Northern Ireland. This is in addition to what we have highlighted on previous occasions, the unique features of Northern Ireland, the relationship between Northern Ireland and the Republic of Ireland, the single epidemiological unit that is the island of Ireland, and how the Northern Ireland institutions and indeed there are cross-border bodies, how they dealt with preparedness.

Secondly, my Lady, the impact of not just no government but one might describe it as dysfunctional government on preparedness. And then of course the unique Northern Irish system of healthcare. And, again, it gives me no pleasure to describe it in this way, but the failed and indeed broken state of the Northern Ireland healthcare service, even in comparison to other parts of the UK, my Lady, and I have given statistics on that on previous occasions.

One feature which is beginning to emerge as well, which we haven’t looked at before, is the impact on the Northern Ireland civil service of Brexit preparations and how that impacted on the ability of the civil service to deal in a normal way with preparedness for a pandemic. Of course, around this time there was the unique impact that the threat of a no-deal Brexit was going to have on Northern Ireland in particular. So that is an issue which has emerged.

These are all issues we say that, yes, it’s welcome that these two experts are going to be asked to look at Northern Ireland in particular. But we had named an individual who has specific Irish – Northern Ireland and Republic of Ireland – expertise and who we regarded as extremely competent and perfectly placed to deal with Northern Ireland devolved issues.

We assume from the response today that that is not going to be looked at in the context of Module 1. Indeed, it would be impossible to see how somebody could be instructed in such a short timescale. But we do feel, my Lady, that in terms of modules going forward that there is a place for a Northern Irish expert to comment on the very unique characteristics that we continue to explain to your Ladyship and to the Tribunal. But that’s not going to happen several weeks before the hearing date.

So really, I just want to reiterate again that we understand the mammoth task that is before your Ladyship and the Inquiry team, and that we are dealing with as well, and the purpose of our involvement in the Inquiry and in these preliminary hearings is to influence and contribute to this process, and these submissions hopefully will be seen just exactly in that context, and nothing more than that.

We feel that this is the essence of the role of a core participant, to influence and contribute, to assist, and indeed my clients do feel that they have, even so far, contributed in small ways to the direction of the Inquiry and hope to do this even further in due course.

We particularly welcome the inclusion of the witness statement from our group and the Northern Ireland bereaved families, and we feel that this, along with the other matters, should reflect the very key role that the bereaved families as core participants should play in this process, my Lady.

So those are my submissions this afternoon on behalf of those families that I represent who, as I say, are listening together in a room in Belfast, my Lady.

Lady Hallett: Thank you very much indeed, Mr Lavery. I’m very grateful for your assistance.

I know you’ll work with the Inquiry team to ensure that the issues you’ve raised are properly addressed. We do all share the same aims, as you say, and I know that your approach will remain constructive. As for disclosure, as I said to Mr Weatherby King’s Counsel, I do understand the concerns, and I promise you we’ll do our very best to ensure that you get the information you need in sufficient time to prepare properly. I don’t want to go down this path, but as Mr Keith mentioned earlier today, in exceptional circumstances I do have powers to ensure that people have been questioned appropriately and thoroughly. I can recall witnesses. I can ask people for further written submissions. So I hope that between us we can find ways to ensure that we’re all ready to start these hearings on June 13, because I know that you understand why I’m so keen to get on. So thank you very much for your submissions, and I now need to ask whether it’s best to break? Yes. I’m told it is best to break.

So thank you, Mr Lavery, and please send my best wishes to those who are gathered there with you. As you know, I always remember the time when I visited Belfast. Who could forget it? It was extraordinarily moving. And I shall be visiting Belfast again during the course of the Inquiry, I hope more than once.

Mr Lavery: I will, my Lady. Thank you.

Lady Hallett: Thank you.

Two o’clock, please.

(12.57 pm)

(The short adjournment)

(2.00 pm)

Lady Hallett: Good afternoon, everyone.

I think next it’s time to call on Ms Mitchell King’s Counsel. Ms Mitchell.

Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Ms Mitchell: My Lady, I’m obliged.

The Scottish Covid Bereaved wish to address Rule 9s, disclosure and delay, and make some brief comments on matters arising this morning.

We are obliged to Counsel to the Inquiry and the team for providing us with an update on the Rule 9 procedure and how that is progressing.

As perhaps properly anticipated by Mr Keith KC, it won’t come as a surprise to the Inquiry to understand that the Scottish Covid Bereaved are concerned that a considerable number of the statements contained insufficient detail and, as was stated, posed more questions than they answered, particularly as some of these came from central government departments.

Further, the Scottish Covid Bereaved are worried to hear that the Inquiry’s considered that it should have been clear to those organisations that the statements simply would not provide the Chair with the detail that she will require in order to consider responsibility for and involvement in the matters set out in the Inquiry’s provisional outline of scope.

If it should have been clear to those organisations that the information provided would be insufficient, this suggests a lack of co-operation with the work of the Inquiry at the most fundamental level of provision of specific information requested.

We are grateful in respect of the transparent way in which Counsel to the Inquiry and the Chair is dealing with this matter, and doubtless those in receipt of Rule 9s, which have been responded to in a less than satisfactory way, will now require to do so in the timescale set out by the Chair.

The way in which the Rule 9 response has been dealt with, however, does not provide the Scottish Covid Bereaved with confidence that, where appropriate, the same parties understand and are properly implementing their disclosure duties in respect of relevant documents.

Confidence in this process is further undermined if, as it appears, the Department for Levelling Up, Housing and Communities has disclosed a considerable proportion of the material which is not in fact responsive to a Rule 9.

The material disclosed apparently is sometimes far too granular in nature. The question asked must be: if regard is not being had properly to the Rule 9 and the documents provided not responsive to it, has the relevant process of assessment been carried out properly at all? Might yet there be a considerable amount of material which has not been provided that is in fact responsive to that request?

The Scottish Covid Bereaved are also concerned to understand that the Office of the Chief Medical Officer has not properly undertaken the request to inform relevant to Module 1 and has rather opted to provide everything. Again, confidence in those receiving Rule 9s are properly understanding and implementing their task, and supplying the correct documents that are sought by the Inquiry is undermined when, as in this case, there appears to be a wholesale departure from the proper application of the disclosure process.

This morning, we understand that these are not the only bodies which have not carried out their task properly. Senior Counsel to the Inquiry has stated it may not be malice but rather a failure to understand what is being asked for, and indeed that is a statement with which we would as yet not demur. However, the outcome is the same, that the proper test is not being carried out and, as a result, the relevant documents are not being supplied.

Senior Counsel to the Inquiry has set out the work that is being done and, clearly, strenuous efforts are being made to ensure we are ready for the hearings, but this work is undermined if the job carried out by those scrutinising their own documents and deciding what falls within it is not carried out properly.

Now, the following proposition I make may be something that’s already done. Indeed, I would be glad to hear that if it was. But if not, going forward, might I suggest that those being asked for disclosure are required to complete a schedule of disclosure which indicates all the documents that are being considered and then sets out separately what documents are and are not being provided to the Inquiry, with a brief description thereof. This would allow the Inquiry to ensure, firstly, that the proper test is being applied, as the haver will have to, as it were, show their thinking, and, secondly, to allow any documents which would appear to the Inquiry to be relevant which have not been included to be called for.

This would go some way in addressing what Donald Rumsfeld famously once described as the unknown unknowns, those things which we simply cannot know because we do not know about them. It would also provide a further testing tool to ensure that disclosure is being properly carried out and in turn bolster confidence in the disclosure process.

We note that the Inquiry considers there is sufficient time before the beginning of the Inquiry’s hearing on 13 June to rectify these matters but has made it clear that that is only if those who have provided statements consider carefully any further requests that have been received and direct themselves towards the Inquiry’s list of issues when providing further statements.

We note the Chair’s comments this morning on the start date of 13 June remaining in place.

The Chair’s concern about any further delay is, of course, the same concern that the Scottish Covid Bereaved have. Whilst it is important to start the evidence, it cannot be done at the expense of proper disclosure. The current amount of disclosure is very substantial, and we’re working through what we currently have. Given the numbers quoted this morning, we expect a very considerable number more, perhaps some of it even very close to or during the hearing date.

Those we represent are anxious that something important might be missed by all concerned, or the import of a document not be realised until a later date. We have of course explained to those we represent the Inquiry process is not like a criminal trial and that, if this happens at any point, if necessary, the Chair can recall a witness, and this of course, as Mr Keith has stated, would only be used when it was entirely necessary.

In our written submissions, we asked, as a comfort to those concerned in this regard, the Chair would confirm that if at a later stage information disclosed that ought to have been available for the purposes of preparations of questioning witnesses who have given evidence, the Inquiry can and will recall such witnesses or seek such evidence in written form. We are therefore very much obliged to Mr Keith for conjoining in this suggestion and for the Chair this morning in confirming it.

As I’m sure will be appreciated, there is understandable anxiety when lawyers raise these issues, but this assurance goes some way to assuring those who are concerned to ensure that nothing which is relevant and necessary, but perhaps which has not been provided timeously, will still be considered in evidence by the Chair.

I’d like briefly to move on and make some further comments about matters arising this morning, my Lady.

My Lady is correct, it was the Scottish Covid Bereaved that suggested what might be described as an informal second sift procedure in an application to Senior Counsel to the Inquiry once a witness has given evidence to seek to persuade him that a line hitherto which has not been taken up be revisited.

I agree with the submission made by Mr Keith this morning that this should not be considered an additional administrative task. Rather, it is an opportunity to allow a second bite of the cherry to core participants to participate in the process of eliciting relevant evidence from a witness. This is particularly of assistance if, in the course of giving evidence, for example, a witness has raised a new issue which had not been previously properly considered.

This process was considered in fact to avoid additional formal administrative process in obviating the need to raise the matter with the Chair.

Can we be allowed an opportunity to assure other core participants that this process has been used north of the border to great effect? On occasion, the request for further issues to be explored is taken up by Senior Counsel to the Inquiry, but if not, usually an explanation is provided as to why they will not be doing so. This not only allows a core participant to once again consider whether or not to follow that up under Rule 10 procedure but also allows them to address what will be said against them to the Chair in the formal application.

Of course, if core participants do not want to avail themselves of the opportunity, as has been noted by both Mr Keith and the Chair, the opportunity to seek to persuade Counsel to the Inquiry of the relevance of a certain line of evidence in this informal matter need not be taken up.

Moving on to the question of parity of disclosed material. Can we assure the Inquiry that in relation to parity, in terms of the amount of material being recovered, it is not expected by the Scottish Covid Bereaved. What is expected, as I’m confident has repeatedly been recognised by the Chair, that issues which are considered in relation to England and the other countries are explored to the same extent as in Scotland.

Moving on to the issue of the Every Story Matters. The difficulties in understanding in relation to Every Story Matters do not seem to exist in the same way north of the border in Scotland. The primary issue to be resolved is the interaction of the process with the listening operation taking place in respect of the Scottish Inquiry. We appreciate that discussions are ongoing in this regard, and no doubt further information will be provided by both Inquiries in due course.

Finally, as before, the Scottish Covid Bereaved welcomes the opportunity to be part of the opening videos and have engaged directly with the team from the UK Inquiry in the planning operation. They now look forward to being involved in providing their stories in this process.

These are the submissions for the Scottish Covid Bereaved.

Lady Hallett: I’m extremely grateful, Ms Mitchell. Thank you very much indeed.

In the light of the submissions made earlier by Mr Weatherby King’s Counsel and Mr Lavery King’s Counsel, and knowing what you were going to say from your written submissions about disclosure, I have been discussing that issue further with the Inquiry team, and I can assure everyone, as I did this morning, that I’m very conscious of the problem, and everything is being done that can be done to ensure that you can all be properly prepared by the time I intend us to start on June 13. But I do understand the concerns, and they’re very properly raised, and that’s obviously one of the points of hearings of this kind.

Thank you very much for your other submissions, particularly the support of those whom you represent in contributing to Every Story Matters, the Listening Exercise. As I said this morning, again, it is absolutely vital for me to have that support if I’m going to make recommendations that may reduce suffering and deaths in the future.

Thank you very much indeed, Ms Mitchell.

Next we have Ms Heaven, Kirsten Heaven.

Submissions on Behalf of Covid-19 Bereaved Families for Justice Cymru by Ms Heaven

Ms Heaven: Good afternoon, my Lady.

Lady Hallett: Good afternoon.

Ms Heaven: I appear today on behalf of the Covid-19 Bereaved Families for Justice Cymru. My Lady, I’ll make some short submissions today, but I won’t be covering all the topics on the agenda.

My Lady, it will come as no surprise that I must start with the submissions on the topic of Rule 9 and disclosure.

The Cymru group recognise that this Inquiry has set itself a punishing schedule, and of course this is entirely right. The Welsh Government’s failure to prepare for the Covid-19 pandemic had catastrophic consequences, and so it is vitally important that the full extent of these failures are publicly exposed and identified so that all lessons can be learnt, and this must happen sooner rather than later.

The Cymru group does support this Inquiry’s attempts to get to the heart of the matter in an efficient and expeditious matter, and the Cymru group is not asking you to delay further the Module 1 hearings.

However, my Lady, as you will of course agree, acting expeditiously must be balanced against ensuring that the Welsh bereaved can participate in Module 1, which your team have recognised covers extensive and complex matters.

It was, of course, Mr Keith King’s Counsel who, at the last preliminary hearing, stressed the important role played by core participants in what he himself termed “this collaborative forensic process”. Mr Keith explained that one of the major ways in which core participants participate in an Inquiry is, in his words, “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 lines of inquiry and topics are drawn up for the purposes of questioning those witnesses”.

My Lady, we of course agree, but we have still not been able to start this process because in Wales we simply have very limited disclosure.

My Lady, of course you are aware of the state of disclosure in relation to Wales for Module 1, but it’s important to summarise what we have thus far been given, so that the Welsh public understand the position facing the Cymru group in this public inquiry.

My Lady, as at today’s date, not a single Welsh witness statement has been disclosed from a witness of fact or from the Welsh Government. In terms of documents, we have received 26 from the Welsh Government Association, 12 from the Welsh Council for Voluntary Action, 134 from Public Health Wales, and 94 from the Welsh Government. The 94 documents from the Welsh Government were disclosed on 21 April at 5.32 pm.

Some of these documents are clearly of real significance to some aspects of the historical attempts to prepare for a pandemic going back nearly 20 years in Wales. However, they are piecemeal, and their significance is unclear, as there is no witness statement explaining the content and context of the document.

My Lady, it is important to note that it’s not particularly helpful to receive disclosure in the absence of a corresponding witness statement. Many of the names of the key players are not contained within these historical documents, and we have not seen the corresponding Rule 9 requests that may have explained the provenance and significance of the various documents. This of course makes it difficult for the Cymru group to identify relevant witnesses.

The consequence of this piecemeal and limited disclosure for Wales is stark. As at today’s hearing, we are seven weeks away from the start of Module 1, the Module 1 hearings, and as at today’s hearing we are three weeks away from having to respond to your Counsel to the Inquiry’s evidence proposals for each witness you intend to call to give live evidence.

To be clear, and so that the Welsh public understand what an evidence proposal is, an evidence proposal will set out what your Counsel to the Inquiry proposes to ask of each witness, and core participants can then raise any comments and submissions as to any additional issues which they wish your CTI to raise when they first question the witness.

As you know, my Lady, questioning must be based on the evidence in the disclosure. Responding to the evidence proposals will, in reality, be the most important opportunity that all non-state core participants like the Cymru group will have to seek to persuade your CTI to ask witnesses about the issues of concern to them.

We understand from what Mr Keith said this morning that we are to receive statements from the Welsh Government, I think he said in the next two weeks. If we get disclosure at the end of this period, this would leave a week for us to consider the Welsh Government statements and disclosure and then respond to the CTI evidence proposals. If this is the position, then you will understand why the Cymru group are concerned about being able to effectively participate.

My Lady, in two days the Cymru group and all other CPs must make submissions in writing as to what witnesses ought to be called to give evidence in Module 1. It is impossible to see how this can be done properly or at all – and certainly in relation to Wales – when no witness statements have been disclosed, where we have very limited disclosure, most of which makes no reference to names, and we’ve not been formally told where responsibility lies for the core decision-making on Module 1 issues in Wales.

It is now inevitable that the Cymru group will find it very difficult to identify all relevant witnesses for your Inquiry to consider for Module 1 in two days’ time. It is, therefore, of concern that we are three weeks away from responding to evidence proposals and we’ve not seen a single Welsh witness statement.

My Lady, in the circumstances, it’s not unreasonable for those whom I represent to feel that the Inquiry has set them an unrealistic and impossible task. It is simply not realistic to expect bereaved individuals who have come together as a group to identify all the issues of concern to their nation, in this case Wales, in a matter of weeks or maybe days.

We also understand that it’s now inevitable that disclosure will continue up until the day when the Module 1 hearing begins.

My Lady, it would be unfortunate if the ability of the Cymru group to effectively participate was limited in Module 1.

My Lady, as you’ve already stated, when you granted the group core participant status, that you consider that the Covid-19 Bereaved Families for Justice Cymru is best placed to assist the Inquiry to achieve its aims by representing the collective interest of the broad spectrum trouble of those bereaved by Covid-19 Wales in relation to Module 1. This is no doubt in part because you’ve seen and recognised that the Cymru group have been tirelessly campaigning on all the issues that this Inquiry will consider, but particularly on the widespread failure of the Welsh Government and the healthcare system in Wales to prepare for a pandemic.

My Lady, as you also know, Wales, unlike Scotland, does not have its own public inquiry. Mr Drakeford, First Minister for Wales, has consistently refused to establish a Welsh public inquiry on the grounds that the actions of the Welsh Government must be and will be scrutinised in detail alongside the actions of the United Kingdom Government and other devolved nations in this Inquiry.

This public inquiry and Module 1 is therefore the only opportunity for the bereaved people of Wales to seek to ask questions and seek answers and accountability on the issues of pandemic preparedness in Wales.

My Lady, the next issue of concern is really to seek to understand why the Inquiry finds itself in this position generally, and in relation to Wales.

The Cymru group of course recognises that this Inquiry has been seeking to obtain documents as quickly and efficiently as possible, and we know that the Inquiry has faced understandable difficulties in relation to the redaction, as outlined in the last Module 1 preliminary hearing.

We also understand that in certain circumstances the Rule 9 process is an iterative process. However, as has already been expressed this morning by other non-state core participants, it is deeply concerning to the Cymru group to learn, in your latest update, that significant delay in disclosure was caused by the actions of certain state bodies.

The Cymru group consider that it is essential that the Welsh public are kept informed of the timeliness and adequacy of the co-operation received by this Inquiry from the Welsh Government witnesses. This is particularly important given what I said a moment ago about the reliance placed on this Inquiry by the Welsh Government in their refusal to hold a public inquiry in Wales.

The Cymru group note that the Welsh Government started preparing for this public inquiry over 18 months ago. The Cymru group note that at today’s date, three out of four of the witness statements prepared by the Welsh Government, including that prepared by Mark Drakeford, have still not been finalised and none of these statements, as we know, have been disclosed.

This is also the case for the statements made by the chief medical team for Wales. They are also still in draft form. This includes statements from Sir Frank Atherton, Vaughan Gething, Dr Andrew Goodall, Dr Quentin Sandifer for Public Health Wales. In fact, the only finalised Welsh Government related statements appear to be from Chris Llewelyn and from David Andrew Goodall, but they’ve not been disclosed. The statement from Dame Deirdre Hine is also still in draft form.

The Cymru group did ask the Inquiry to clarify whether the Welsh Government was one of those state bodies that had provided an insufficient response to your request for disclosure.

The Cymru group welcomes Mr Keith’s clarification today and his explanation that in the first draft of the Welsh Government witness statement there was a notable absence of supporting exhibits in relation to some areas.

As a result, we now understand that the Inquiry had to go back to the Welsh Government and raise the matter with them and make clear that, whatever assertions statements make, they must be properly supported by exhibits. In other words, they must be properly supported by the documentary evidence that we know is held by the Welsh Government.

The Cymru group do consider that it is simply unacceptable that the Welsh Government did not disclose all the documents they ought to have disclosed to this Inquiry in a timely manner. As I’ve already mentioned a moment ago, the Welsh Government have been preparing for this Inquiry for a significant period of time. The draft terms of reference for this Inquiry were published on 11 March 2022, and the Welsh Government had sight of the Module 1 provisional outline of scope on 21 July 2022. The Cymru group consider that the Welsh Government have been well aware for some time of the documents they ought to disclose to this Inquiry, and that such documents must be disclosed at the first available opportunity. The Cymru group urge the Welsh Government to ensure that there is full and timely disclosure for all future modules.

For transparency, the Cymru group ask the Inquiry to publish all directions issued to Welsh Government and, indeed, all versions of witness statements that have been received by the Inquiry from the Welsh Government. This will allow the core participants and the Welsh public to understand exactly what evidence the Welsh Government did not disclose to this Inquiry when first requested.

My Lady, as you will of course appreciate, disclosure at the last moment merely risks state bodies such as the Welsh Government escaping effective scrutiny by those bereaved by the Covid-19 pandemic in Wales.

My Lady, the Cymru group is very reluctant to call into question your current timetable for the Module 1 public hearings and, as I’ve already said, we’re not asking you to delay those hearings. My Lady, the Cymru group therefore ask you to take all necessary steps to ensure effectively participation moving forward. My Lady, you’re asked to ensure that all Welsh witnesses now adhere strictly to whatever deadlines you impose from today and that witness statements are disclosed as a matter of urgency, and ideally by the end of this week.

My Lady, I now turn to another topic, which is the Module 1 issues list.

The Module 1 issues list is very broad and comprehensive and of course that’s welcomed. However, in part it does lack clarity and, as I know you understand, that does make it difficult for some non-state core participants to fully understand what will be covered in Module 1.

At the last preliminary hearing, Mr Keith explained that high level preparedness, including high level funding and resourcing, would be considered but that sectoral and operational readiness would be addressed in later modules. Mr Keith has very helpfully addressed this matter again today and provided some more clarity, and that does assist.

However, there is still some uncertainty on behalf of my clients in relation to issue 4, public health services.

We do support and echo the submissions made by Mr Weatherby this morning, and simply add that the Cymru group asks for more clarity on how far Module 1 will be considering the high level structural preparedness of NHS Wales for an airborne respiratory virus pandemic, including matters such as the state of the Welsh hospital estate and its infrastructure and funding. We don’t consider that these issues can be classified as operational matters. It’s also not clear whether issue 4 will cover the Welsh social care sector and the structural interface with Welsh hospitals from the funding perspective.

The Cymru group further note that at present no chief executive officer is to be called in Module 1 from NHS Wales to deal with structural planning. It is therefore hard to see how Module 1 will be able to consider, for example, preparedness within the Welsh NHS estate. The Cymru group therefore request clarity on the scope of issue 4, as well as the level of detail that the Inquiry expects to be able to go into, and to make clear where the above issues that I’ve just outlined will fall to be examined if it’s not Module 1.

As I’ve said, the Cymru group consider that such high level structural matters ought to be considered in Module 1, not least because lessons need to be learnt in Wales as soon as possible, given the continuing issue with high levels – and indeed very high levels – of hospital acquired Covid-19 in Wales. Not only that, we understood the position to be that structural and funding matters would not fall within later modules.

My Lady, I now turn to the issue of expert witnesses.

As my Lady will be aware, the Cymru group have already made written submissions on a number of expert reports for Module 1 and have had sight of the most recently disclosed reports.

What is clear from all these reports is that the devolved administrations, including Wales, receive insufficient analysis and in some instances virtually no analysis. In some reports there appears to be a lack of data in respect of Wales, and many of the reports simply lack a robust comparative analysis of the actions of the devolved administrations than the UK Government.

Public Health Scotland have raised a concern about the limited treatment of public health matters specifically related to Scotland in the expert reports. The Cymru group agree with this concern, and we make the same point in relation to Wales.

Now, we do of course understand that the Inquiry has asked for further work to be undertaken by certain experts on the devolved nations, and of course we welcome this, but we very much hope that these further draft expert reports will be disclosed imminently.

Notwithstanding this request, the Cymru group do repeat their earlier requests that have been made in writing that the Inquiry instruct expert witnesses to deal with the Welsh healthcare and legal system relevant to health and inequality in Wales, and an expert in Welsh devolution.

The Cymru group note and support the written request for an expert to deal with Northern Ireland pandemic preparedness. Now, although we’re very close to the Module 1 hearings, the Cymru group do ask you to consider the viability and utility of instructing an expert with extensive experience in pandemic preparedness in Wales.

The Cymru group know, and they have informed the Inquiry, that following devolution steps were taken in Wales to review systems and processes in order to prepare for a pandemic. In addition, the Inquiry can now see from the latest Welsh Government disclosure that pandemic preparatory work was being undertaken from at least 2009 and in fact earlier.

The Cymru group are concerned to understand, then, how this Inquiry is intending to adduce and analyse the historical factual information on Welsh pandemic preparedness in the absence of a Welsh expert. It would appear that the Inquiry is not intending to call witnesses of fact to deal with what steps were taken in Wales from 2009 onwards.

The Cymru group consider that if such an expert was instructed, they could review and analyse the disclosure and provide an independent opinion on Welsh preparedness from devolution onwards. This would not only significantly assist you, my Lady, but it would also assist the Welsh bereaved in effectively participating in the Inquiry. The Cymru group stands ready to suggest a list of possible experts with the relevant expertise in this area, if you so require.

Finally, the Cymru group wish to add that they were greatly assisted by having sight of the instructions to Dr Kirchelle, which were very specific and detailed, and it is hoped that the Inquiry continues to adopt this constructive approach moving forward, so that any gaps in expert instructions can be identified early on by all participants.

The Cymru group, finally, support the clarification requested to the Kirchelle instructions made by NHS Scotland. In short, in instructions to experts there should be absolute clarity whether devolved nations are being referred to, as opposed to England and/or the United Kingdom.

My Lady, I now turn to the procedure on evidence proposals in Rule 10.

I have already made the general point in relation to the time left available to consider any disclosure before responding to CTI’s evidence proposal. As we have already indicated in our written submissions, an inevitable consequence of late and delayed disclosure is that bereaved core participants will struggle to fully respond to witness proposals on CTI’s deadline. We will of course do our best if disclosure is forthcoming imminently. However, delayed and staggered disclosure may well result in bereaved core participants having to submit topics for consideration after the deadlines proposed, and it’s very much hoped that the Inquiry legal team will be understanding here and set aside sufficient time to consider all the topics submitted by core participants.

In terms of the questioning of witnesses by counsel other than CTI, Mr Keith has provided very useful further clarification today on how this is likely to work, and we’ve very carefully noted and taken account of what he has said.

The Cymru group strongly supports the submissions that have already been made in previous hearings and today by Mr Weatherby on the procedure in relation to Rule 10, and on the importance of the bereaved, through their counsel, being permitted in certain circumstances to ask time-limited questions after CTI.

Allowing this to happen will enhance the ability of the Inquiry to involve the core participants in a collaborative fashion, which will make the Inquiry work more effectively, particularly for the Welsh bereaved. It will also allow the Inquiry to draw on the wide range of knowledge and experience of the bereaved.

However, on a practical level, if disclosure is to continue up to and possibly even during the hearing, it’s inevitable that this will impact on the Rule 10 process, and it may well increase the number of applications from the bereaved to question witnesses directly.

My Lady, given the limited disclosure in relation to Wales, I’ve nothing further to say at this stage on the approach to witnesses.

The only further procedural matter that I wish to comment on is the Inquiry’s decision, as communicated in the March update, that written opening statements are not to be invited and will not be considered for Module 1.

Now, a written opening statement, as you know, is in effect a final opportunity – or near final opportunity – for core participants to provide their submissions on the evidence. The Cymru group are in no doubt that all non-state core participants will be able to offer you and CTI significant assistance in written opening statements. This is particularly so given that disclosure will likely occur after the response to CTI’s witness proposals.

There will simply be insufficient time for core participants to make the points they wish to make in a time-limited opening oral statement.

My Lady, the Cymru group consider that not having written opening statements is a very significant missed opportunity on the Inquiry’s part which does, unfortunately, further limit the ability of core participants – and particularly non-state core participants – from effectively participating.

So, my Lady, we do urge you reconsider the issue of receiving written opening statements.

Finally, I just want to end by saying that the Cymru group want to reinforce to you today, my Lady, that they remain committed to working with this Inquiry and your Inquiry legal team in an open and collaborative way.

Thank you very much.

Lady Hallett: Thank you very much, Ms Heaven.

As you have obviously acknowledged, I welcome and encourage contributions from core participants. To date they have been extremely helpful and constructive, and very properly raised areas of concern.

I do understand your particular concerns about, obviously, disclosure and the timetable and matters relating specifically to Wales and the Welsh Government.

I remember vividly from my visit to Wales during the terms of reference consultation that there were issues that were very specific to Wales, as indeed there will be issues specific to Scotland and Northern Ireland.

So I do understand what you’re saying, and I will address the concerns with the Inquiry team, and I hope that we’ll be able to allay any concerns in good time.

So thank you very much for your submissions, and I will consider them very carefully.

Ms Heaven: Thank you.

Lady Hallett: Thank you.

Now I think we have Ms Murphy King’s Counsel.

Submissions on Behalf of the Trades Union Congress by Ms Murphy

Ms Murphy: Good afternoon, my Lady.

If I may begin, please, with extending an apology on behalf of Ms Gallagher King’s Counsel and Mr Jacobs, who have prior professional commitments today. No discourtesy is intended, and I offer the important reassurance that my understudy arrangement is a temporary one.

Lady Hallett: I think I would like to reiterate my congratulations to you, Ms Murphy, on your recent appointment to the rank of King’s Counsel.

Ms Murphy: That’s very kind, my Lady, thank you.

My Lady, as you’re aware, I appear instructed by Thompsons Solicitors on behalf of the Trade Union Council, and it is meaningful to do so in a week when our clients and the trade union movement globally remember all workers who have lost their lives to workplace illness or injury, and who re-commit on 28 April every year to take action to reduce workplace injury and fatality.

The TUC’s commitment to assisting your Inquiry to the fullest extent of its resources falls squarely within this annual commitment to action, as they recognise that without lessons being identified they cannot be learned and the necessary change will not come.

My Lady, I have some very brief submissions, as most of the matters that concern us have been carefully addressed by others. We make first a few short observations and secondly, but again briefly, a submission of substance relating to the social care sector.

So, my Lady, the initial observations.

The Trade Union Council is cognisant and appreciative of the industry that your team has brought to bear to ensure that this is an Inquiry that will proceed at rapid pace. The TUC continues to support the Inquiry’s maintenance of a challenging timetable, while acknowledging and supporting the submissions made to you this afternoon with regard to the challenges that this in turn places upon the non-state core participants.

It is in that context that the TUC, in common with others from whom you have heard today, have been deeply concerned to hear that central government departments have failed to provide statements within the scope of the requests made of them, have offered insufficient detail, have caused your team to devote resources to making follow-up requests to address matters that they have omitted, and to expand on matters that had been included with insufficient detail.

We welcome Mr Keith King’s Counsel’s confidence that the issues have been addressed, but, my Lady, your Inquiry is of course entitled to the fullest possible co-operation and assistance from central government, and in particular such co-operation is of course essential if this process is to meet the laudable objectives that you have set for it, including specifically the effective participation of the bereaved and those we represent.

We are confident you, my Lady, will not tolerate the repetition or continuance of non-co-operation by central government, and we are equally reassured by your reference this afternoon to use your significant powers to ensure that co-operation, if that proves necessary.

My Lady, before I move off that topic, we note and request further clarification of the nine individuals who have not replied to Rule 9 requests and the six who have declined to provide responses.

If I might deal briefly with Mr Keith KC’s point 13, which arises from paragraphs 26 to 32 of the written submissions on behalf of the TUC, the list of bodies and the scope of Rule 9 requests to them.

My Lady, we do consider it sensible to comment once we’ve had the opportunity to consider the responses from the Local Government Association, so we say nothing further about that this afternoon.

So far as Dr Kirchelle is concerned, we’re grateful for the practical suggestion made by Mr Keith King’s Counsel, and we will follow up on the constructive offer made.

If I might then turn to the submission of substance, which relates to the list of issues or scope of Module 1, and specifically the nature of the planned scope pertaining to the social care sector within issue 4.

We are of course grateful for Mr Keith KC’s clarification that the prescient concerns raised in the context of Operation Cygnus in 2015 as to the capacity within the social care sector to permit the NHS to implement its proposed reverse triage plans will fall within the scope, and that addresses one aspect of the TUC’s submissions on this topic, at paragraphs 18 to 22 of our written submissions.

But more broadly, the TUC consider the interface between public health services and social care, and the structural problems within social care that made that interface so problematic during the pandemic, to be topics of critical, central importance to your consideration of pandemic preparedness and planning at a high level.

The concerns are not limited to sectoral or operational matters that can be raised with witnesses in later modules.

We have emphasised at paragraphs 20 to 22 structural problems that were or ought to have been identified in the pre-pandemic period, in the context specifically of pandemic risk management and preparedness.

By way of a very specific example, at paragraph 21 of our submissions, we have discussed the lack of structural preparedness in relation to data collection. As you will appreciate, my Lady, the national audit unit picked up in June 2020 that the non-availability of a mechanism for the collation of daily data from the social care sector caused real difficulty at the start of the outbreak.

The Inquiry has also received important evidence on this topic in the form of a statement dated 14 December 2022 – and the reference is INQ80743 – which we invite you to consider with care in relation to this aspect. That statement addresses multiple occasions when the escalating fragility of the social care sector was brought to the attention of the government, long before 2019, and specifically in the context of pandemic planning.

Structural issues going directly to the question, to use Mr Keith KC’s term of this morning, whether we were properly ready. This is of course a topic that directly affected an enormous proportion of those adversely affected by the pandemic.

The statement to which we have made reference informs that adult social services support over 1.1 million people receiving state funded social care, and those adult social services have, in addition, safety netting responsibility in relation to organisations delivering care outside the state sector. There are some 17,700 such organisations and, in addition, as at the 2011 census, 6.5 million people in the UK were carers.

All will be concerned by the issue of whether there was a structural lack of preparedness in relation to the social care sector.

This same statement informs that 1.54 million people worked in adult social care, a higher number than within the NHS, and the NHS has itself spoken clearly of the impact of the pressures in social care on delivery of health services. The relationship is an essential one, it is one of interdependence.

The point has been repeatedly made that both pandemic planning and the early response to this pandemic epitomise the under-recognition of social care on(?) the people needing it and the people working within it, and that social care was not well understood, nor the impact of swingeing austerity cuts affecting the sector.

Lord Kamall, Parliamentary Undersecretary at the Department of Health and Social Care, said in the Lords on 8 September 2022 that the government recognises that for a long time the social care sector has been treated like Cinderella, a poor relation to the health system; and the TUC press the point that your Inquiry should not replicate that imbalance, and must put considerations of social care, planning and resilience at the front and at the centre of Module 1.

We invite you to do so, my Lady, at this stage by reference to – by making amendments to the scope identified for Module 1, because there are of course implications for the witness lists and for the instruction of experts.

We do invite your careful consideration of this aspect and we’re grateful, my Lady, for your ongoing careful attention to the issues that we raise.

Unless there is anything further we can assist you with, those are our submissions.

Lady Hallett: Thank you very much indeed, Ms Murphy.

As you say, there are a number of matters there that you have raised and others have raised during the course of today, and I will consider them very carefully with the Inquiry team. Thank you very much for your help.

Mr Keith, any further comments from you?

Mr Keith: My Lady, I think only to offer that if of course there are any matters on which you would particularly like to hear me respond on, then I am available to address them. But obviously there are a number of matters here to which you will, we all know, be giving the closest consideration. Whether or not they require specific rulings is another matter, but I know that these will all be debated within the Inquiry team and be the subject of resolution by yourself in the usual way.

Lady Hallett: Thank you, Mr Keith.

I think the best thing is if I consider the submissions very carefully, obviously, and then consult with the Inquiry team and see the extent to which we can allay the concerns which have been raised today. As I have indicated, I will bear all the submissions made in mind, and see whether or not any rulings are necessary. I suspect, as you do, that rulings aren’t necessary, but obviously close co-operation with the core participants will be.

So, thank you, everybody, for attending today’s hearing.

I believe this may be the last hearing which we conduct remotely, although there may be one more preliminary hearing, but it’s certainly I hope the last hearing we will be conducting remotely as far as Module 1 is concerned. So on the next occasion we meet, I hope it will be in the hearing centre.

Thank you all very much indeed.

Mr Keith: Thank you, my Lady.

(2.50 pm)

(The hearing adjourned)