Transcript of Module 2 Preliminary Hearing on 31 October 2022

(10.00 am)

Lady Hallett: Good morning, everyone.

This is the first preliminary hearing into Module 2 of the Covid-19 UK Inquiry.

Module 2 – and Mr Hugo Keith King’s Counsel will expand upon this in a moment – is looking at and making recommendations upon the UK’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 and February 2022, when the remaining Covid restrictions were lifted.

I have received a number of written submissions in relation to this module, and in a moment I shall invite Mr Keith, first of all, and then any core participants who wish to make oral submissions to elaborate upon the written submissions.

Can I just say this: I don’t wish to take up unnecessary time, because we’ve got a lot to get through, but I’m extraordinarily grateful to the core participants for their written submissions. They were helpful and they were constructive, and I very much appreciate the offers of support and close co-operation expressed within them.

So thank you to everybody who took the trouble to submit those written submissions.

I’ll now call upon Mr Keith to outline the issues that we have to consider this morning.

Mr Keith.

Statement by Lead Counsel to the Inquiry

Mr Keith: My Lady, by way of brief introduction, I’m going to start by setting out the arrangements for today’s hearing, and then introduce the core participants. Some of what I will say will repeat what I said at the preliminary hearing into Module 1. Because this is a different module with necessarily different issues to be addressed, and a significant number of new core participants, it’s necessary to set out some of the matters again.

Starting with the arrangements for this hearing, the proceedings are of course being recorded and live streamed to other locations. This has certain benefits. First, it allows the hearing to be followed by a greater number of people than would able to be accommodated within the hearing room or any overspill rooms; second, and in accordance with section 18 of the Inquiries Act 2005, my Lady, you’re obliged to take such steps as you consider reasonable to ensure that members of the public are able to attend or see and hear a simultaneous transmission of the proceedings. Live streaming goes a considerable way to satisfying this obligation.

May I say straightaway also that one of the core participant groups has reminded us of the need to review whether any reasonable adjustments are required to be made to the transmission of proceedings, and we’ll of course review matters going forward in light of what they have said.

Also, as is routine in public inquiries, where there may from time to time be matters mentioned of a potentially sensitive nature, the broadcasting of the hearing will be conducted with a three-minute delay. This provides the opportunity for the feed to be paused if anything unexpected is aired which should not be. We do not expect any such matters to arise over the course of today.

Let me then turn to representation. Present today, whether in person or remotely, but excluding myself and the Inquiry legal counsel and solicitor team here, are counsel and solicitors representing 39 core participants. All are, therefore, legally represented and I don’t propose, my Lady, to read all the names out.

Then turning to the core participants themselves, they know who they are, but I should explain that they are entities, organisations or persons with a significant legal interest in Module 2 and who, therefore, have enhanced rights to participate in this process.

Each of the core participants appearing before you was granted this status by you under Rule 5 of The Inquiry Rules 2006.

By way of overview, the Inquiry received 75 applications, some made jointly, for core participant status. Of these applications, 39 have been designated, some jointly, as core participants. They are as follows, and there is, my Lady, no significance in the order of names that I will read out:

The UK Statistics Authority; Scottish Covid Bereaved, formerly known as the Scottish Covid-19 Bereaved Families for Justice; Northern Ireland Covid-19 Bereaved Families for Justice; Covid-19 Bereaved Families for Justice Cymru; Covid-19 Bereaved Families for Justice Group; Care England; the Homecare Association; and the National Care Forum; Long Covid Kids; Long Covid SOS; and Long Covid Support; Save the Children UK; Just for Kids Law; and the Children’s Rights Alliance for England; Solace Women’s Aid; and Southall Black Sisters; disabled people’s representatives organisations, comprising the Disability Rights UK, the Disability Action Northern Ireland, Inclusion Scotland and Disability Wales groups; the National Police Chiefs’ Council; the Office of the Chief Medical Officer; the Secretary of State for the Home Department; the Welsh Government; the Scottish Ministers; the Executive Office of Northern Ireland; the Chancellor of the Duchy of Lancaster; the Cabinet Office; the Secretary of State for Foreign, Commonwealth and Development; His Majesty’s Treasury; the Secretary of State for Health and Social Care; the Government Office for Science; the Local Government Association; and Welsh Local Government Association; NHS England; the Trades Union Congress; the British Medical Association; the Federation of Ethnic Minority Healthcare Organisations; the UK Health Security Agency; and Imperial College.

My Lady, you know, of course, that core participant status brings significant procedural advantages. The core participants get access to the disclosed documents, they will make submissions on the course and the mechanics of this Inquiry, they will raise specific questions and assist us in ensuring that the Inquiry discharges the formidable duties imposed upon it.

I need to say something about the nature of those duties, given the public interest in these proceedings, and the nature of the issues that Module 2 will be enquiring into.

In the very briefest of outlines, Module 2 is concerned with how, in overarching terms, central government responded to the pandemic and made the key decisions that it did, concerning matters of central importance such as the decisions to impose lockdowns, how and why did it make those core decisions, how well did the system work.

You have resolved, and I repeat the resolution today, that the Inquiry will enquire into these momentous decisions and events thoroughly and rigorously. It will ensure that the facts are properly revealed. It will identify plainly wrongful decision-making, and significant errors of judgement, but it will acknowledge what went well. And most importantly, it will ensure that lessons are identified so that they may be properly learnt for the future.

The bereaved and those who have suffered are absolutely entitled to no less.

In this unprecedented and vast and difficult undertaking, the Inquiry team will need the insightful and sensible assistance of all the core participants, and I wish to record also the Inquiry team’s gratitude, alongside your own, my Lady, for the contributions reflected in the written submissions.

A key consideration in this module will be whether those who stood to suffer particular disadvantage because of the pandemic and the steps taken to deal with it were properly identified by the government, and whether the likely impact on them was sufficiently assessed.

We welcome, therefore, particularly, in addition to the bereaved family groups, the assistance of those core participants representing the interest of those sectors of society and groups who were likely to be particularly affected by the government decision-making: the disabled; the vulnerable; the elderly; children, particularly those at risk or in care or with particular needs; women and girls against whom violence and domestic abuse was perpetrated; those with chronic mental and physical health needs; members of ethnic minority communities; and, not least, long Covid sufferers, who ask whether the risks that eventuated in their case were properly considered. And it’s for those reasons, my Lady, that you have appointed the representative organisations that you have.

To aid the better recollection, if it be needed, of the devastating impact of the Covid pandemic and to reinforce the utter seriousness and extent of the Inquiry’s task in examining in Module 2 the decisions that the government took, it’s necessary to set out the briefest of chronologies of the early stages of the pandemic.

My Lady, as your opening statement recalled, in late December 2019, a cluster of cases of pneumonia of unknown etiology was detected in Wuhan City, Hubei Province, in China. A new strain of coronavirus was subsequently isolated on 7 January 2020. It was identified as severe acute respiratory syndrome coronavirus 2, SARS-CoV-2.

On 21 January 2020, the World Health Organisation published its Novel Coronavirus Situation Report - 1. It recorded that, as of the day before, 282 confirmed cases of 2019-nCoV had been reported from four countries, including China, Thailand, Japan and the Republic of Korea.

On 30 January, the second meeting of the International Health Regulations Emergency Committee of the World Health Organisation declared a public emergency of international concern.

The virus and its associated disease, Covid-19, spread rapidly. On 15 February 2020 France recorded the first official death in Europe from Covid-19. By late February, the number of cases of Covid-19 outside China had increased thirteenfold, and the number of affected countries had tripled.

A worldwide public health emergency ensued, and on 11 March the WHO declared Covid to be the first coronavirus pandemic.

As few on this planet will be unaware, Covid-19 has killed millions of people worldwide and infected many millions more. Globally, as of 26 October of this year, there have been over 625 million confirmed cases of Covid-19, including over 6.5 million deaths, all these reported to the World Health Organisation.

Some estimates of death put the estimated number of deaths attributable to Covid, that is to say not just those reported, at tens of millions.

The pandemic has led to financial and economic turmoil. It has disrupted economies and education systems, and put unprecedented pressure on national health systems. Jobs and businesses have been destroyed and livelihoods taken away. The disease has caused widespread and long-term physical and mental illness, grief, and untold misery. Its impact will be felt worldwide, including in the United Kingdom, for decades to come.

As everyone here will recall, on Monday, 23 March of 2020, the Prime Minister announced severe restrictions on the entirety of the United Kingdom in what became known as the first national lockdown.

My Lady, I don’t propose to say anything more about the events leading up to that cataclysmic moment in the life of the United Kingdom. For this preliminary hearing it’s not required and the detail of those events will, of course, be a matter for you in due course.

But we recall that vast swathes of human and social activity were ordered to be drastically curtailed and much of public life was halted. People were instructed to stay at home except for certain very limited purposes, such as to shop for essential items, to carry out one form of outdoor exercise each day, for medical needs, to provide care to a vulnerable person, or to travel to and from work if absolutely necessary and where that work could not be done from home.

Almost every area of public life across all four nations, including schools, the transport system, the justice system and the majority of public services were adversely affected. The hospitality, retail, travel and tourism, arts and culture, and sport and leisure sectors effectively ceased to operate. Even places of worship closed.

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

The months that followed saw death and illness on an unprecedented scale. The latest government figures, my Lady, calculate that in the United Kingdom there have been around 180,000 deaths within 28 days of a positive test. Beyond the individual tragedy of each and every death, and the devastating effect on the bereaved, it is clear that the pandemic placed extraordinary levels of strain on the UK’s health, care, financial and educational systems, as well as on jobs and businesses.

The pandemic reached out and affected almost every person in the United Kingdom one way or another. But the hardship and suffering was not equally spread. For many it meant confronting the risk of infection or worse at the coalface: in hospitals, care homes and on the frontline of the public sector.

For others, it meant the loss of employment or of a business, or of worsening health, or an increase in the daily struggle, the struggle with financial worry or home care or poor living conditions.

So societal damage has been widespread, with unmet health needs, damaged educational prospects, financial insecurity, exacerbated inequalities and access to opportunity significantly weakened.

The disease is still with us, of course. There were 625 deaths involving Covid-19 registered patients in the United Kingdom in the week ending 14 October 2022.

The cost in human and financial terms of bringing coronavirus under control has also been immense. Government borrowing and the cost of procurement and of the various job retention income, loan, sick pay and other support schemes has severely impacted public finances and our financial health. The impact on the NHS, its operations, its waiting lists and its elective care has been similarly immense.

So, my Lady, this Inquiry has been constituted to investigate, on behalf of the bereaved and those who have otherwise suffered, as well as the wider public, whether anything could have been done to reduce that loss and suffering.

Only in this way can proper and effective recommendations be drawn up to protect the country better in the future from pandemics, whether caused by a coronavirus variant or some other form of disease, and also from comparable civil emergencies.

Given the sheer extent of the impact of the pandemic and the government decision-making that was required across such a very wide range of areas, it is little surprise that this Inquiry will be no less complex and multifaceted.

My Lady, may I then turn to say something about the commencement of the Inquiry, so that its legal foundations and legal scope can be properly understood and the work that you have already done be brought to public attention.

On 12 May 2021, the then Prime Minister made a statement in the House of Commons in which he announced that there would be a public inquiry under the Inquiries Act 2005. He stated that it would examine the UK’s preparedness and response to the Covid-19 pandemic and learn lessons for the future.

On 15 December 2021, as the sponsoring minister, he appointed you, my Lady, as Chair of the Covid-19 Inquiry.

In his written appointment letter, he confirmed that he would be consulting with ministers from the devolved administrations. This is important, because such consultation is required, by section 27 of the Inquiries Act, to enable the inclusion in the terms of reference of an Inquiry for which a United Kingdom minister is responsible, of anything that would require the Inquiry to determine facts and make recommendations wholly or primarily concerned with a Scottish matter or a Welsh matter or a transferred Northern Ireland matter.

Draft terms of reference were drawn up making clear that the Inquiry would consider and report on the state’s preparations and response to the pandemic, and would therefore consider both reserved and devolved matters relating to the devolved administrations in Scotland, Wales and Northern Ireland.

On 10 January, you wrote to the Prime Minister recommending certain amendments to ensure greater clarity in the Inquiry’s remit. You also sought an express mandate to publish interim reports so as to ensure that any urgent recommendations could be published and considered in a timely manner.

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

On 4 February the Prime Minister responded accepting, with some minor caveats, the detailed changes that you had proposed.

On 10 March, having consulted with the ministers from the devolved administrations in the way that I’ve described, the Prime Minister wrote to you to inform you of certain further changes to the draft terms of reference which had been made in response to some comments from the devolved administrations.

Then the consultation process commenced, because on 11 March you wrote an open letter to the public in which you announced the launch of a public consultation process on the Inquiry’s draft terms of reference. The Inquiry issued a consultation document seeking the public’s views on whether the Inquiry’s draft terms of reference covered all the areas that they thought should be addressed, and on whether the Inquiry should set a planned end date for its public hearings.

The consultation was open to everyone, and the public could contribute on the Inquiry’s website by email or in writing.

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

In total, the Inquiry received over 20,000 responses to the consultation, of which over 19,000 were received through an online consultation form.

An independent research consultancy was commissioned to analyse the responses and produce a comprehensive independent report. This summarised the respondents’ views and the key themes that emerged from the consultation process.

In light of those views, my Lady, you recommended a number of significant changes to the draft terms of reference, and you wrote to the Prime Minister recommending those changes.

It’s important that I emphasise: they were accepted in full.

Accordingly, on 21 July, the Inquiry was formally opened and you announced the decision to conduct the Inquiry in modules. Module 1, dealing with preparedness and resilience, was opened on 21 July, and the preliminary hearing into that module took place a few weeks ago.

This module was opened on 31 August, when its provisional outline of scope was published.

As I will explain a little further in a moment, Module 2 will consider and make recommendations about the UK’s core political and administrative decision-making in relation to the pandemic between early January 2020 until the Covid restrictions were lifted in February 2022.

This module will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet, as advised by the civil service, senior political, scientific and medical advisers, and relevant Cabinet subcommittees. And it will do so with particular scrutiny to the period between early January and late March 2020, when the first national lockdown was imposed.

Because, as I’ve said, this Inquiry is obliged under section 27 of the Inquiries Act and its terms of reference to consider both reserved and devolved matters in respect of Scotland, Wales and Northern Ireland, having considered the picture from a UK-wide and also English perspective in Module 2, Modules 2A, 2B and 2C will address the same overarching and strategic issues from the perspective of Scotland, Wales and Northern Ireland. So the preliminary hearing in those modules will take place tomorrow and on Wednesday.

The public hearings in Module 1 and Module 2 will take place in London. Modules 2A, 2B and 2C will take place in Scotland, Wales and Northern Ireland respectively.

My Lady, many of the core participants in their written submissions have asked for detail of what will come thereafter.

Module 3 will consider the impact of the Covid pandemic on healthcare systems in England, Wales, Scotland and Northern Ireland. It will examine the capacity of healthcare systems to respond to a pandemic and how they evolved. It will consider the primary, secondary and tertiary healthcare sectors and services and people’s experience of healthcare during the pandemic. It will examine healthcare-related inequalities, core decision-making, and leadership within the healthcare systems. And the matters that you have directed will be inquired into will include staffing levels, critical care capacity, the establishment and use of Nightingale hospitals and the use of private hospitals, the 111, 999 and ambulance services, GP surgeries, hospitals and cross-sectional co-operation, healthcare provision and treatment for patients with Covid-19, palliative care, the provision of cardiopulmonary resuscitation, including the use of Do Not Attempt Cardiopulmonary Resuscitation instructions (DNACPRs), the impact of the pandemic on healthcare staff, communication with patients, shielding, the impact of the pandemic on the clinically vulnerable, and the post-Covid condition referred to as “Long Covid”.

Later modules, details of which will be published in due course, will address, putting it very broadly, vaccines, therapeutics, antiviral treatment, the care sector, government procurement and PPE, test, tracing, government business and financial responses across the United Kingdom. And then later modules still will look at health inequalities and the impact of the pandemic on education, on business and the self-employed, on children and young persons, on courts and prisons, on the public services and key workers. It will also address – or they will address hospitality, retail, tourism, arts, culture and sport.

The request from one of the core participants for yet more detail can be answered, I’m afraid, only in this way: that is as much detail as can sensibly be decided and set out at the moment.

I then turn to this module. The documents setting out the provisional outline of scope for Module 2 has been published and I don’t propose to read it out. The focus is on the really significant decisions that formed the response to the pandemic: the non-pharmaceutical interventions, the lockdowns, working from home, the reduction of person-to-person contact, social distancing and the use of face coverings.

You intend to investigate how and why the major decisions were made; what factors were taken into account in making those key decisions; what was the scientific and medical evidence upon which those decisions were based; were they the right decisions insofar as we can tell?

We will consider the timeliness of those interventions, whether there were viable alternatives, whether different decisions might have produced different outcomes. We will investigate what the driving forces of those momentous decisions were. Why did the Prime Minister and senior ministers decide what they did?

Some of the issues, my Lady, might be posed as questions, but I emphasise that these are but a handful of the areas that you will be looking at, and different issues may also come to the fore as we move through the process.

But in relation to the structures and effectiveness of the central government bodies tasked with responding to the pandemic, such as COBR, the COBR committee, Cabinet committees, the ministerial implementation groups, SAGE, the Scientific Advisory Group for Emergencies and so on, some relevant questions might be these:

How effectively was SAGE utilised by central government? What improvements, if any, could be made to SAGE or the way in which central government uses it? Can lessons be learnt from the structures in place in other countries for the provision of scientific advice to policymakers? How effectively were these government structures resourced and staffed? Was their membership sufficiently transparent? How well did government departments assist and co-operate with the specialist committees?

Was the system of government medical and scientific advisers effectively utilised? How effective was the decision-making system under which the Prime Minister and other ministers acted on the advice and recommendations of the relevant bodies and advisers?

Did the system allow properly for timely political decision-making? Were decision-makers able to understand and interrogate scientific advice sufficiently?

What lessons were learnt from the way in which advice and recommendations were given and decisions made and responded to? And what was the extent of the co-ordination between the United Kingdom Government and the devolved administrations?

Access to and use of medical and scientific expertise, including data and data modelling, is an important matter at the heart of this module. So did key decision-makers have sufficient and proper access to reliable data and data modelling? Was there sufficient professional breadth and diversity of personnel? Were there any disciplines that were underrepresented on the committees? Was international experience sufficiently represented?

Did the committees have relevant and accurate data? How effectively was data described through the government? How reliable was the infectious disease data modelling? Did the data modelling cover the right eventualities? Was there an over-reliance on epidemiological modelling or mathematical modelling? Was there a over-reliance on influenza epidemiology and data modelling in the advice that was provided?

To what extent were factors such as the economy, non-Covid-related health concerns, education, mental health and societal issues considered when these momentous decisions were taken?

Were there any decisions in relation to which scientific advice was not sought but which ought to have been?

So we will examine the initial strategies relating to community testing, the movement from contain to delay, the broad and early guidance given to healthcare providers, the issue of herd immunity.

And then, in relation to the lockdowns and other restrictions, you will enquire into the effectiveness of the mandatory lockdowns in controlling the transmission of Covid-19 and the relationship between the timeliness and the length of the lockdown and the trajectory of the disease.

How were economic and societal impacts, including the impacts on physical health, healthcare provision, mental health, education and societal wellbeing, assessed and weighed in the balance?

Perhaps, my Lady, the single most important question: is it possible to say what the likely effects of earlier or different decisions to intervene would have been; the counterfactual proposition? Bluntly, would lives have been saved if the lockdowns had been imposed earlier or differently?

You will be enquiring also into the identification of at risk and other vulnerable groups and the assessment of the likely impact on them of the pandemic decision-making in light of those existing inequalities. Was there a failure to adequately recognise that chronic illness and/or disability was an outcome for the pandemic?

Then, public health. You will be enquiring into public health communications in relation to the steps taken to control the spread of the virus, the effectiveness and the reach of government messaging. Was the declared policy of “following the science” a fair reflection of the actual decision-making?

You will be enquiring into the maintenance of public confidence in the government strategy and decision-making, and you will be looking at the impact of alleged breaches of rules and standards on that process and on the maintenance of public confidence.

My Lady, I have taken those issues at a pace. Their scope is, of course, hugely ambitious, but it’s necessarily provisional because it’s neither practical nor advisable to identify at this stage all the issues that will be addressed at the public hearing.

The key, my Lady, must be to keep our focus on understanding the effectiveness of the core decision-making process; what worked, what didn’t work and what are the lessons that must be learnt?

A number of the core participants in their written submissions have made helpful suggestions concerning scope. They’ve identified certain changes that they propose you should make in the direction of the Inquiry and this module, or they have specified particular areas for investigation. There are particularly helpful suggestions in the submissions from Covid-19 Bereaved Families for Justice Group and the Northern Ireland Covid-19 Bereaved Families for Justice submissions.

Some have also called for a draft list of issues.

My Lady, the Inquiry will reflect, of course, on all those submissions. May I just make a number of points as to how we propose to do so.

First, the Inquiry will approach all those suggestions with an open, indeed eager frame of mind. It serves no purpose whatsoever to expend the time, energy and cost in designing and holding this Module 2 hearing only for issues of real importance not to be explored.

But, second, the scope document is only a generic guide. The actual scope and the issues and questions that will arise for scrutiny at the public hearing can only be assessed by reference to the material gathered under the Rule 9 process.

Third, as you said in your opening statement in July, with such a wide scope, the Inquiry will have to be ruthless in its selection of issues and relentless in its focus on matters of real importance. You cannot examine every issue, even if thematically within the reach of Module 2, and nor can you call every witness relating to every event, every issue or every major decision.

In the context of this module, Module 2, the focus is on whether the government had sufficient regard to the likely impact of the pandemic and its decision-making, not on what the impact of its decision-making turned out to be.

One core participant has called for a commitment that the Inquiry will examine whether the government had due and proper regard to the public sector equality duty. In summary, those subject to that duty must:

“… have due regard to the need to:

“(a) eliminate [unlawful] discrimination, harassment, [and] victimisation and … other conduct prohibited by … [the] Act …”

Also, the need to “advance equality of opportunity”, and to “foster good relations between [people] who share a … protected characteristic and [those] who do not”.

Of course, you will be asking questions about the extent to which the government adhered to such duties, but that is an evidential issue and it serves no purpose for the Inquiry now to try to set out, let alone guarantee, what it will ask and what it will not.

May I then turn to the Rule 9 requests.

Since the start-up date of 21 July, a huge amount of work has been done in terms of resourcing and staffing the Inquiry, setting up the legal teams, identifying hearing venues, responding to public communications and setting Modules 1 and 2 on their way.

The Inquiry has already issued formal requests for evidence under what is known as Rule 9 to the following organisations for the purposes of this module, Module 2.

The Cabinet Office, Foreign, Commonwealth & Development Office, the Department of Health and Social Care, the Office of the Chief Medical Officer, the Government Office for Science, SAGE, Independent SAGE, the Home Office, His Majesty’s Treasury, the Department for Education, the Department for Transport, the Department for Levelling Up, the Department for Work and Pensions, the Department for Business, Energy & Industrial Strategy, the UK Health Security Agency, and NHS England.

Those Rule 9s are lengthy, complex and wide-ranging, and I’m greatly indebted to the counsel team, solicitors and barristers alike, for Module 2 for their industry and focus in drafting those documents.

As a result, we will receive many tens of thousands of documents for this module alone. And I need to say that in the case of the major government departments, it’s clear from the initial responses that tens of millions of documents could be potentially responsive to the outline of scope if one went by the overall theme identified for Module 2.

In respect of the Cabinet Office alone, the required reviews of its own mass of documentation have been estimated as being likely to take over three years. The Inquiry would then itself have to review all that material prior to disclosure being given to the core participants.

Such a process if put in place would lead to an unconscionable delay in the Inquiry’s timetable, and render impossible your stated determination to produce timely recommendations.

So with respect to the central government providers, the Inquiry has adopted a targeted approach. For this module, by which, rather than requiring all the documents potentially relevant to a theme or an area to be provided, it has instead sought documentation relevant to the key narrative events, the decision-making procedures, to particular bodies and persons, and the decisions relating to the key political and administrative decision-making.

Some of the core participants, my Lady, have asked: how will we know, therefore, whether you will receive the relevant material? The answer is plain: we ultimately decide what the key narrative events and decisions are; by making detailed requests, then scouring the first responses for events and decisions worthy of investigation, and by harvesting all the other material that we receive to make sure those are the correct decisions, we will bear down on what matters.

So we assess, my Lady, that the targeted approach will lead to the disclosure of what is potentially relevant. We are not limiting what is potentially relevant or how that is to be defined. We are instead identifying at an early stage what the real issues are to which the documents may be potentially relevant, and we do so by reference to dates, to people, and events, rather than by warehousing that documentation.

To assist the process, may I also say that we are asking those Rule 9 recipients for chronologies, for corporate statements and the flagging of particularly important materials. Disclosure statements will be requested, so organisations explain the approach they have taken, and we can dip sample materials to check against those explanations.

My Lady, may I emphasise, however, that we just can’t ask material providers to give us everything they hold about Covid. Common sense dictates that would be an impossible request, and an impossible task to achieve. It would take too much time and be self-defeating. Too much disclosure is as bad as too little.

But may I, to give a brief example, give some detail of the sort of documents we’ve requested from, by way of example, the Cabinet Office.

We have sought agendas, minutes, and other documents associated with the core decision-making forums, such as Cabinet meetings, COBR meetings and ministerial implementation groups. We have asked for ministerial submissions, Number 10 daily briefing documents, records of written and oral advice to ministers, and details of internal communications, including WhatsApp group, which included the Prime Minister, Number 10, and other senior officials.

I should also say that the formal Rule 9 requests that the Inquiry has made amount to only one element of the ongoing process of discussion between the Inquiry and those organisations, the purpose of which has been to ensure that the requests we make are as efficient as possible in capturing material and setting the timescales.

My Lady, the long list that I gave of recipients of those Rule 9 requests also included members of SAGE, the Scientific Advisory Group for Emergencies, and Independent SAGE, the group of scientists, but a group that was unaffiliated to government, who worked together to provide independent scientific advice to the United Kingdom Government and the public.

Let me say a little more about those requests.

As you know, the membership of the scientific advisory body SAGE and its subcommittees comprised – and comprises – both civil servants and independent scientists. The Inquiry has sent Rule 9 requests to very nearly all of the independent scientists who sat on those committees during the pandemic, 199 individuals in total.

They were asked to provide amongst other things a summary of their involvement in this work, their views as to whether the committees on which they sat succeeded in their aims during the pandemic, and more generally their reflections on lessons learnt and recommendations for change that the Inquiry should consider making.

Similar requests have been sent to all members of the Independent SAGE committee, and we have received responses to a large proportion of those asks.

The Rule 9 requests continue weekly. They are being issued on an iterative basis and further requests will be made in due course.

Rule 9 requests will be made to civil society and special interest groups, representative bodies of local authorities, further scientists on SAGE, as well as independent scientists, certain witnesses from the People’s Covid Inquiry, first ministers from the devolved administrations and other ministers attending UK Cabinet meetings, Chief Medical Officers, Deputy Chief Medical Officers, scientific advisers, senior officials in Public Health England, NHS England, senior civil servants, certain political advisers, and then the then Prime Minister and other key ministers.

So of course we will give consideration to the further suggestions made by the core participants, including those made by the Southall Black Sisters and Solace Women’s Aid, those made by the disabled people’s organisations and by the Trades Union Congress.

But the net that we have cast is already an exceptionally wide one.

Turning to disclosure of those requests, which is an issue which has been raised by a number of the core participants.

Disclosure to the core participants of those Rule 9 requests is neither required by the rules nor generally established by past practice. We submit that their disclosure would serve little purpose, given that the core participants will get and see the vast majority of what the Rule 9 requests reveal. It is the documentary material that matters, not how it was asked for.

Moreover, given that almost all the Rule 9 requests will be superseded by and built upon further requests from the Inquiry team, disclosure of preceding requests serves, we assess, no purpose.

One core participant particularly concerned about whether the government may omit to identify certain areas which are of importance, including whether or not it considered certain risks and the impact of its decision-making on that particular sector, suggests that disclosure of a schedule of an itemised list of documents possessed by all the Rule 9 recipients would enable that core participant to identify where an issue should have been but was not considered by the government. We respectfully disagree.

Where the government failed to consider certain issues, such omissions will be apparent on the face of the documents and their internal submissions, those internal submissions relating to decision-making in issue.

So disclosure of lists of potentially relevant materials is not necessary to enable the core participants to make the forensic point that certain issues which should have been considered by the government at the time were not in fact considered.

My Lady, in your Module 1 ruling you ruled that disclosure of the Rule 9 requests would serve little practical purpose, given the wide scope and the detailed nature of the requests that are in fact being made, and we invite you to apply the same approach to this module, Module 2.

Turning next to disclosure to the core participants.

The core participants are of course entitled to disclosure of relevant documents in advance of the public hearing, so as to enable them to contribute meaningfully to the process. Plainly, to make sure that this Inquiry is in a position to disclose relevant material, we have to cast our net more widely when gathering it in. The Inquiry does this by asking document providers for material that is likely to be relevant to the issues that arise for enquiry.

But thereafter, it’s neither necessary nor proportionate for the Inquiry to disclose every document that it receives or every request that it makes, or, of course, every piece of correspondence. That is not required, and it would hinder the Inquiry in the performance of its functions. It is not the function of the core participants to duplicate the inquisitorial task of the Inquiry.

In particular, the documents received from the document providers cannot be provided without a sift for relevance and for utility. Disclosure requires active management by the Inquiry. But I can give further details about the disclosure process that is being adopted, so that core participants can be further reassured.

As an Inquiry team, we propose to give regular disclosure updates in which we can report on progress which has been made in obtaining relevant documents, and we will do so at future procedural hearing or hearings.

Secondly, we don’t propose only to provide core participants with documents relevant to themselves. Everyone will receive the same documents for that module.

Third, we’ll provide all documents that the Inquiry has received subject, as I’ve said, to a relevance review, but also a de-duplication exercise and, third, redactions in accordance with the redactions protocol, so as to weed out irrelevant personal data, for example.

Fourth, there won’t be a document protocol because I’ve endeavoured to set out today the Inquiry’s general approach.

So disclosure is likely to be made in tranches. Experience has shown, my Lady, that the disclosure of documents as and when they’re received makes for practically a more difficult task.

Some core participants have requested that document providers sign a statement explaining how they have secured the preservation of documents, how they have conducted their searches, and how they have satisfied themselves that they have complied in full with their duties.

I can say that each provider has been asked or will be asked to provide an account setting out details of how the documents were originally stored, the search terms used, or other processes used to locate documents, and the nature of the review carried out by the document provider.

So where the Inquiry has queries or concerns about a provider’s processes for locating relevant documents, it will raise them, it will pursue them. And of course, as documents are reviewed and gaps identified, further documents will be sought.

My Lady, in the course of the preliminary hearing into Module 1, an issue arose in relation to the steps taken to ensure the preservation of documents. And I said on that occasion that the Inquiry secretary, Mr Ben Connah, had written to the Director General, Propriety & Ethics to the Cabinet Office to request the retention of records across government. The Director General had replied, setting out the steps that had been taken to ensure records relevant to the Inquiry were being retained. But may I assure you, and assure the core participants, that the Director General, Propriety & Ethics to the Cabinet Office has again written to government departments reiterating the requirement to ensure that all bodies within their ambit that exercise public functions, either within the department or wider via representative bodies, including local authorities, retain documents relevant to this Inquiry.

You also, of course, have the power to compel the production of documents, and there are provisions in the Inquiries Act which make it a criminal offence if, during the course of an Inquiry, a person does anything to alter or distort a document or intentionally destroys, suppresses or conceals one.

Finally on this topic, my Lady, there is the issue of whether or not there should be an obligation on document providers to submit a list of undisclosed documents, that is to say documents which aren’t disclosed because they are not relevant.

It is, of course, a matter for you. In our submission, we do, however, ask rhetorically: to what end? It is for the Inquiry to determine whether proper disclosure is being made, what further areas should be explored, and whether documents are required to be produced. So the production of a document setting out everything that’s not been disclosed would simply require an immense amount of further work to little end.

In the preliminary hearing in Module 1, you ruled that the production of a document setting out everything that has not been disclosed would require a very considerable amount of work for little practical gain. In your view, you ruled, this would not be consistent with the obligation to minimise cost to the public purse, and we invite you to apply the same analysis to Module 2.

The electronic disclosure system that will be used to provide documents will be Relativity, and we anticipate that disclosure will commence before Christmas.

Turning next to expert material and the instruction of expert witnesses in Module 2.

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

My Lady, those experts will have the necessary expertise and experience for the particular instruction. They will be independent and objective, and subject to an overriding duty to assist the Inquiry on matters within their expertise.

As the core participants will no doubt appreciate, the identification of suitable experts is not at all straightforward, given the public ventilation of views by many of the experts in their particular fields, and the fact that some of the best experts were themselves involved in the events under investigation.

There is also, it will be no surprise to know, a significant absence of unanimity of opinion on many matters.

However, we’ve started to draw up a list of provisionally suitable experts. Written reports will be shared with the core participants, and where there are significant differences of view or emphasis among the members of a group, that will be clear on the face of the reports themselves. And of course, disputes or differences of view can be tested during the oral hearings.

The Inquiry has provisionally identified a number of areas in relation to which witnesses are likely to be giving evidence on such topics, whether as witnesses of fact or as experts. And those areas are likely to include: the co-ordination of strategy and crisis management in central government; the governance and accountability of and the co-ordination between government departments; systems for measuring and the estimation of infections and deaths; registration of deaths; and the overall figures for infection and death; statistical methods in infectious disease epidemiology; mathematical modelling of the spread of the virus; transmission, infection, mutation, reinfection and death modelling systems. Also, the international comparison of modelling systems; data sharing in government and with regional and devolved administrations.

Finally, experts and lay witnesses with expertise will be asked to look particularly at the issue of government and public communications, and behavioural science, the impact of messaging in the maintenance of public behaviour.

On behalf of the Inquiry team, we welcome the identification by some of the core participants of other suitable areas, and we note the suggestions made by the Southall Black Sisters and the Solace Women’s Aid group in particular. We will consider all the suggestions, bearing in mind the guiding principle that the appointment of experts to the Inquiry and their assignment to a group are matters exclusively for you.

I now turn to the question of the Listening Exercise, as to which, my Lady, you’ll have seen that again some of the core participants have advanced submissions.

As foreshadowed in the terms of reference, the Inquiry is in the process of designing its Listening Exercise. That is to say, you have ordered that the Inquiry set up a way in which the experiences of bereaved families and others who have suffered hardship or loss can be heard and recorded, and that those experiences can be analysed and summarised before being admitted into the formal record of the Inquiry.

The summaries of what is heard via the Listening Exercise and that accompanying analysis – and it is not just data and numbers – will be fed into the public hearings for Module 3 onwards as evidence, as I have said, so that it can inform the Inquiry’s understanding of the impact of the pandemic and the response and of the lessons to be learned. It will also, of course, be disclosed to the core participants.

My Lady, this will allow the Inquiry to understand the experiences of the pandemic from across the whole of the United Kingdom, including from those most affected, but also those whose voices are not always heard. It will provide an opportunity for people to have their voices heard by the Inquiry without the formality of giving evidence or attending a public hearing, so that everyone who wishes to do so feels able to contribute to the Inquiry.

My Lady, the process which you have instructed to be done will reach vastly more people than could ever be accommodated by the giving of evidence in public hearings.

So the exercise aims to hear from a broad range of people, including the bereaved, but also those whose health has suffered from the disease, long Covid sufferers, those living with disability or health problems, the clinically vulnerable, and those whose family life, education, jobs, health, well-being and livelihoods were significantly affected.

It’s obviously important that the Inquiry gets the design and structure right, and the Inquiry will start piloting different approaches for the Listening Exercise very shortly. This will include the Inquiry introducing, in November 2022, a new part of its website which will invite people to share their experiences. With thanks to the many members of the public, including bereaved families, who have already provided feedback, progress has been made on this online option.

Then, later in the winter and into the spring, a pilot in-person and online process will start with group sessions, and over time those trials will increase in scale until the Listening Exercise is running at full capacity next year.

But, my Lady, to do this, the Inquiry needs to draw on experts with a range of knowledge. We cannot ourselves design and set up a system that can reach out to potentially tens of thousands of persons wishing to share their experiences and then manage that information also. So the company Ipsos has been appointed by the Inquiry to bring research and analysis expertise to the Inquiry’s design and piloting of this process.

They will set up the pilot process by which meetings can take place for people to share their experiences, and approaches might include one member of the public meeting someone who is an expert in talking about such things. It may involve group meetings, focus groups or sharing by phone and virtual meetings.

Of course, appropriate support will be arranged with the Inquiry to ensure those early trials don’t have a detrimental impact on those participating, but the trials will take place in different locations across the United Kingdom and will target different types of people and groups.

The initial Listening will be undertaken by Ipsos on behalf of the Inquiry but in combination with other organisations that might be needed, such as community outreach groups and experts in trauma. Inquiry officials and you, my Lady, may be attending individual sessions, but it is too early to tell.

A consortium will then gather those experiences alongside members of the Inquiry team so that they can be properly analysed and summarised before being placed into a form that can be admitted into the record.

M&C Saatchi, a second company, has been appointed by the Inquiry to help the Inquiry inform people how and when to come forward to talk about what happened to them, and they are required to design the plans required to communicate with people to ensure that we can reach across society to hear from as many people as possible.

My Lady, some concern has been raised about a communications company doing the Listening. May I say for the sake of clarity, they will not themselves be doing the Listening.

The contracts will run for between five to eight months depending on how quickly the work progresses and how much insight the Inquiry can generate from bereaved groups and interested organisations, all of whom will of course be consulted.

Both companies have been required to declare any potential conflict of interest and their declarations have been considered and approved by the Inquiry. The Solicitor to the Inquiry, Mr Martin Smith, has provided further information about this process in a note that will be circulated this morning and may indeed already have been sent out.

My Lady, I emphasise that the experiences which will be shared will not be filed in the hearing by way of direct oral evidence or as individual testimony, because it must necessarily be anonymised. But legal representation to participate will not therefore be necessary and it’s not intended that the Inquiry will fund legal assistance for people to participate.

I further emphasise that this is quite separate from the direct oral testimony that you will be receiving concerning the circumstances of individual deaths where such evidence is relevant to the light that it sheds upon whether there were systemic failures.

Some of the core participants have again asked in their written submissions some questions about the process: who will be doing the Listening, what qualifications if any will the listeners have, what training if any will the listeners have, how will the experiences be recorded? This and much, much more of course remains to be worked out, but naturally it will all be shared with the core participants as soon as the Inquiry is able to do so.

Turning then to commemoration.

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

My Lady, I know that you have asked the Inquiry team to work over the coming weeks with the core participants and those who have suffered so much to offer our thinking on this matter and so that they may be able to contribute to the process.

You have said that we should agree some principles and find the right solution, one that is suitable and that captures the right feelings and emotions.

So, further to your direction, the Inquiry team will be in call shortly with affected groups and will involve them as appropriate in coming weeks in relation to development of that commemoration.

Now, my Lady, finally before you hear from the legal representatives, may I say that there will be a further preliminary hearing for this module. It will be held early in 2023 in London, on a specific date and at a venue to be confirmed, but probably here.

The public hearing in Module 2 will take place in London in the summer of 2023, next year, and it will last around eight weeks.

We are proceeding, as I have said and as some core participants have acknowledged, at immense pace, and that is a sensible and achievable time at which to conduct the Module 2 public hearing.

Notice will be given of everything that is required to be so notified. My Lady, it may not always allow for as much time as the core participants would like. We will do our best, but time is against us, and there is a huge amount to be done.

My Lady, I’ve sought to lay out where the Inquiry stands at present in the major procedural terms, but we’re also here of course to listen to the core participants about the Inquiry and how it should proceed, and we will of course, as I’ve said, take careful account of everything that will be said to you this morning.

You have received, as you know, a note from Counsel to the Inquiry setting out the issues that may be explored, and you have also received ten written submissions in response, one of which is a joint note on behalf of the Covid-19 Bereaved Families for Justice Group and the Northern Ireland Covid-19 Bereaved Families for Justice.

The majority of the remainder of the core participants have kindly indicated that they don’t wish and haven’t wished to file written submissions, but the written submissions which have been filed have of course all been circulated around the core participants.

My Lady, we understand that of the core participants there will be ten who will wish now to make oral submissions to you.

Lady Hallett: Thank you very much, Mr Keith, thank you. I have been asked to take a break for the stenographer, who has been doing an excellent job on the transcript. So we shall break now and return at 11.30, please.

(11.10 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Weatherby.

Submissions on Behalf of the Covid Bereaved Families for Justice Group by Mr Weatherby

Mr Weatherby: Good morning.

I previously introduced the Covid Bereaved Families for Justice Group to you at the preliminary hearing for Module 1, but with your permission I will do so again briefly at this Module 2 hearing because obviously there are other people present and watching.

The Covid Bereaved Families for Justice is the group formed in early 2020 as a support and campaigning group for those who lost loved ones to Covid, and the failed response to it. Sadly, as you know, the group grew and grew for very obvious reasons.

The group is UK wide. Its Facebook page has about 6,600 supporters currently. Of those, about 3,320 are signed up as members of the group, which is a significant figure, indicating, more than they want to be updated, they want an actual involvement.

The group is incorporated for administrative reasons. It has a board of directors and a campaign team. Its directors are all bereaved family members.

The members are from England, Scotland, Wales, Northern Ireland and, indeed, beyond, because the criteria is that they lost loved ones within the UK not where they live, and so the members are widely geographically located.

I lead the central legal team instructed by Broudie Jackson Canter Solicitors. We have a full working arrangement with the Northern Ireland team, the Scottish and Welsh bereaved groups who have CP status or are autonomous from the group.

A main object of the campaign from its inception was to get this public inquiry. The families are committed to engaging with the Inquiry to get the answers they seek, to get accountability, and to ensure that all of the UK and each part of it is better prepared for the next time, through your recommendations.

The bereaved understand that they are by no means the only ones with a legitimate interest in the success of this process, but they are central to it, a fact that I have not been slow to underline in my submissions to you so far – or, indeed, with respect, you have not been slow to acknowledge.

The families seek effective participation in the Inquiry. They do not want to be bystanders or passive observers. As you know, we have made significant – I hope significant – submissions to you both in writing and orally, and the group facilitated the consultation at the earliest stages after your appointment.

In respect of Module 2, we’ve made fairly detailed written submissions. Some of the issues overlap with the issues that I raised in Module 1. And where you’ve ruled on them, I certainly don’t intend to tax your patience or repeat those, save for the fact that there is some overlap and I will, with respect, return to one or two of them.

We have read the written submissions of other core participants which came through a few days ago. It’s notable to us on a quick read-through that many of the themes in them are repeated, and therefore no doubt that’s something as we’ve recognised, you will too. And the fact that points are being raised by a number of different core participants will no doubt have an effect on the way that you consider them.

In terms of the agenda, I’ll start, if I may, with scope and paragraph 5 of our written submissions.

We’ve noted that the Inquiry’s provisional scope is certainly wide enough to encompass all relevant issues within this module, and therefore we don’t seek to make constructive criticism of the width of it. We are grateful to Mr Keith this morning for fleshing out some of those issues.

We also note that it’s been said that it’s neither practical nor advisable at this stage to give greater particularity, and the scope will evolve through the Rule 9 procedure. As was said earlier, but just to remind those less familiar, the Rule 9 procedure being the process by which the Inquiry requests material from those it believes can assist the Inquiry.

We certainly understand the logic behind the assertion that that process will lead to material and answers that will allow for more consideration to be made to expand the scope. But if the position on Rule 9 requests remains the same, that they won’t be shared with the core participants, then it does make it difficult for us to have input into the development of that scope.

As I say, I’ve had that argument and therefore I’m going to move swiftly on, but with one caveat, and that is that we say the position in respect of Module 2 is not the same, because of the targeted approach that Mr Keith referred to in writing and earlier on, that being that important government departments, including perhaps the most central of them, the Cabinet Office, will not be required to provide all relevant documents or potentially relevant documents but ones with target.

Therefore, I’ll come on to the process, if I may, in a few moments, but what we say about that is that makes it even more important that we’re involved in the process from an earlier stage. But, as I say, I’ll come back to that, if I may, in a moment.

Before I do, I just want to raise a number of factual points or points that we think should be expressly included within the scope for Module 2, and we say they should be made express within the scope, so there is no doubt but that they will be covered. The enormous task that you have has been noted by Mr Keith and everybody else, and so the possibility of matters being overlooked or missed is obviously going to be there and there throughout. Therefore, the maximum amount of assistance that you can get from core participants we would urge you to do.

More than that, for people who are perhaps within vulnerable groups or people who have suffered discrimination, which I will come on to in a moment, it is very important indeed that they understand expressly that they’re included in the scope. So for those reasons we would ask you, through your team, through either expanding the provisional scope or, perhaps better, through a list of issues, that there should be a rolling or iterative process of expanding the express terms of the scope.

We’ve heard from Mr Keith this morning on the first of the points that I was going to raise, that so-called herd immunity is very much within the consideration of the Inquiry. We’re not surprised to hear that, but we would invite you to make that clear within an amended provisional scope or a list of issues.

Likewise, we would say that it’s important to make clear that the effect of mitigating measures, non-pharmaceutical interventions in particular, to the extent to which they were considered against forecasts of the numbers of people who might die, should be included expressly.

Likewise, the fact that there were certain very high profile sporting events which were allowed to take place during a period of dire Covid statistics. And very sadly some of the people that I represent are here because of those events. And therefore it’s important to them that it’s made clear and express that the Inquiry will be looking at those.

In terms of discrimination and vulnerability, two separate but overlapping areas, I’m grateful to Mr Keith for his clarification and setting out some of the groups, some of the sections of community that will be included in that. But again, as I say, for people within those communities, people with particular vulnerabilities, it’s very important to them to understand as clearly as can be that their issues will be considered, and therefore we would urge you to expand on the generic reference in paragraph 3 of your provisional scope to these issues and to raise them again through a list of issues or an amended provisional scope, to include as many – as much particularisation as possible.

So, for example, the effects of systemic or structural discrimination and the way that Covid had a disproportionate effect on black and brown communities, other ethnic minority communities, and whether that was properly considered by the high level government and Cabinet, particularly but not exclusively in the early stages.

We note and support the submissions on the self-same points made by the Federation of Ethnic Minority Healthcare Organisations and the TUC, which appeared to be supportive of them.

Separately, but in addition, specific concerns were they properly considered? Concerning the elderly, children, clinically vulnerable, those in detention and other congregate facilities, those living with physical and mental disabilities, those living with learning disabilities, autistic people, people with other cognitive disabilities such as dementia, were they fully and properly considered? Again, we note and support the submissions on some of these points made by the disabled people’s organisations, the children’s rights organisations in particular.

And then, of course, there are key workers, those in particularly vulnerable jobs such as transport, healthcare, social care, those in the gig economy and those especially vulnerable because of economic disadvantage.

And importantly, and I think Mr Keith has already covered this point, we very much support the Southall Black Sisters and Solace Women’s Aid regarding whether the particular impact on women and girls of Covid and the response measures were properly considered.

Now, of course, it may well be, particularly given the issues that were raised by Mr Keith, that the Inquiry absolutely intends to pursue those issues, but, for the reasons I’ve already mentioned, we respectfully invite you to particularise them and particularise them at an early stage.

Two further points, quick points on scope. In paragraph 5 we would urge you to add whether the Prime Minister and Cabinet took the virus sufficiently seriously in their messaging. That’s an issue which is particularly raw for some of the families, given some of the media attention particularly in the early months.

And in paragraph 6 we’ve raised the issue of the disproportionate or the allegedly disproportionate enforcement of regulations on certain racial and ethnic minority groups.

And we recognise that may straddle other modules but it is covered to some extent in Module 2, particularly with respect to the drafting of a framework of regulations.

So that’s all I seek to assert in terms of scope.

Moving on to Rule 9, we’ve set out further submissions on Rule 9 from our paragraph 11. You did not find favour with our submissions and those of the TUC on this subject in Module 1, indicating that we’d be provided with general updates on a monthly basis, and Mr Keith has indicated that he is urging you to adopt the same process.

But, as I flagged earlier, we do say that the position is different because of the targeted approach to the production of material to the Inquiry with respect to Module 2. And we do understand the reasons for the Inquiry taking that approach. The example given, unsurprisingly, and helpfully indeed, is that of the Cabinet Office, and we do follow that there will be an extremely large volume of potentially relevant material available.

Now, obviously, as the department of state which supports the Prime Minister and the Cabinet, that material is likely to be central to Module 2 and, indeed, other modules, but – we do understand the points that are being raised, but we also note the obvious caution, that an approach of targeted disclosure does give significant latitude to those who will be subject to investigation and potential criticism to be the ones that actually determine, rather than the Inquiry, in the first place at least, what is disclosed.

I follow and understand and accept that the Inquiry will pursue on a rolling iterative basis with Rule 9s so that, inadvertently or not, disclosure of relevant documents can’t be overlooked or missed. We note that counsel has recounted that the reviews by the Cabinet Office would take over three years, we’re told, and that’s before there’s a privilege and national security check. But in a way this starts to open up the issues with this, because we’re not clear where those estimates come from. They must come from the Cabinet Office itself. And the time taken to consider what needs to be disclosed is a function of many things, including the amount of resources that are put into it.

So we’re not sure the extent of the problem of disclosure, and we would urge you to keep a very open mind of people who may have reason to try to rein in their own disclosure.

If the answer is a targeted approach, and we don’t indicate – we don’t submit that it isn’t, it’s even more vital that there is maximum transparency in this process from the outset as to what is and, perhaps more importantly, what is not being targeted.

So, having commented that the provisional scope is wide enough to cover all relevant matters, the lack of particularity – currently, understandably, the lack of particularity doesn’t assist in the bereaved or anybody else understanding what is being targeted and what is not.

Interestingly, the submissions of NHS England at their paragraph 6 would appear to chime with that submission from the other end of the telescope, from an organisation which is a producer. Of course they’ll speak for themselves, if I’ve got that right or wrong, but it is interesting and important that, in trying to assist the Inquiry, core participants are approaching the same issue from different approaches.

So, in our submission, if a targeted approach is the right one, and it may well be, then it’s even more important that it’s accompanied by a list of issues, iteratively evolving over time as facts emerge, and that there should be disclosure of the Rule 9s so that core participants can see what is actually being sought and what is not being targeted.

So those are our submissions on that.

CTI, Counsel to the Inquiry, refers to the “key narrative events, the decision-making procedures [of those] … bodies and persons [relevant] to the [core] political and administrative decision-making”, and the core decisions themselves, quote unquote.

It’s essential that we all know, in our submission, to what that actually refers, and that’s the greater particularity we seek. At the moment we don’t. And it’s only through that transparency that we are effectively allowed to take a part in this section of the process.

Moving on from that, we note the fact that the Inquiry is seeking corporate or organisational statements “setting out a narrative of relevant events and the lessons learned”, including a chronology. And we note in the written submissions at paragraphs 45 and 50 of counsel’s note that they will “serve a similar purpose to position statements”.

We agree, and we view that as a very positive step indeed, adding only that we hope, in line with the tight timescale set by the Inquiry, that those statements will be required to be provided very swiftly and, indeed, the product disclosed as soon as the redaction process is undertaken. That would be a significant step in facilitating the engagement of core participants. And therefore, we would seek clarification about when those statements are to be produced to the Inquiry and when it’s envisaged that they’ll be disclosed to core participants.

I was going to raise a short point on disclosure, but I think Mr Keith has helpfully answered that point, that it’s the intention of the Inquiry to disclose all material which passes the relevance test that’s gathered by the Inquiry.

Just for the avoidance of doubt, we have not argued, and we don’t argue, for disclosure of non-relevant material. We fully understand and agree that that isn’t required. So I don’t think I need to address you further on that.

Experts. We welcome the assertion that the Inquiry will consider suggestions from core participants, and we will make observations in due course when we have a greater understanding of the wider issues in Module 2. But we would urge the Inquiry to have more of a dialogue with core participants about the areas, the identities and the letters of instruction at an early stage. The current indication is that there is a provisional list of experts, and we would seek that that is shared with us so that we can have input into that.

Certainly from our perspective, and I’ve no doubt others’, we will take a positive approach to that. We have already indicated that we understand the problems in this particular Inquiry of getting independent experts, because just about everybody has expressed a view, but we don’t think that’s insurmountable. We respectfully agree with the indication that I think you gave earlier that you will look to adopt panels of experts so there can be a balance of views where there is such.

But we would urge that these matters are a matter for dialogue, and the current indication that the dialogue or consultation about experts will be at the stage that they are being finalised, we respectfully say is the wrong approach. It’s the wrong end of the stick. The later it is that we and all the other CPs are brought to the table on this, the less positive input that we can have into that. And this is effectively allowing us to assist the Inquiry and facilitating the effective participation of core participants.

Almost finally, the Listening Exercise. This is an issue which, as you know, has generated a number of written and oral submissions already. You considered matters during Module 1. In our written submissions we’ve set out, from 23, a summary of submissions we served on 17 October. Now, we did that in light of the discussion at the Module 1 preliminary hearing, to try to make what we considered to be constructive proposals, and we’ve included them in the written submissions for today, just so that they’re set out so that everybody can see the position of the families on those issues.

As you know, the proposals we made were regarding commemorations or pen portraits, the evidence of circumstance of death and evidence of bereavement, and we stressed the imperative that the Inquiry hears a proportionate amount at first-hand. We’ve noted in the written submissions the reassurance that has been given regarding the second of those issues, the intention of the Inquiry to call evidence from the bereaved on systemic matters relating to the deaths of their loved ones where it’s relevant to the particular module.

You’ve indicated already in your ruling that you’re not minded to hear pen portrait evidence, but that you will keep commemorations under review and something has been said about that today.

I’m not therefore going to address you further on those matters, but we do indicate clearly and publicly that we will positively engage with your team in the dialogue that was mentioned earlier about commemorations. With respect, we won’t change our position, but we will engage positively on that subject.

What I do raise further today is the parts of those further submissions we put in about the Listening Exercise. So beyond the submissions about the importance of the Inquiry hearing first-hand from the bereaved, we have recognised the utility of the wider process to gather experiences and evidence, not just from the bereaved, but from others affected by the pandemic. And we referred to this at 29 and 30 of our written submissions.

But if there is to be such a process, we urge again that it’s devised in collaboration with those affected. You are well aware of the concerns that the bereaved had to reading reports in the media. I’m not going to go back to that. Whether outside assistance is required is plainly a matter for you. We’ve learned today for the first time, in the course of oral submissions, of the two companies that have been engaged to assist the Inquiry in this endeavour.

Whether such outside assistance is engaged, as it appears it has been, we respectfully urge that, through your team, you engage with us to try to put into that process. Your team has many people that have dealt with the bereaved positively and have experience and expertise in that. Frankly so do we. I raised on the last occasion that there were charities, for example Inquest – Inquest has been doing listening exercises for 40 years. It does listening days with the bereaved from many tragedies. So far as we’re aware, it is a key body which we would invite the Inquiry to look to, to engage with.

We’re also aware of other experts, for example some academics that have also, over many processes and reviews and enquiries, been engaged in gathering evidence from the bereaved and have a lot of learning and experience about how to do that, and we would urge that engagement is made with them. We will help. But we would say that it’s important to engage with those who have the experience of the sensitivities involved, and we hope that that will be done.

Finally, just a small point, notice of hearings. We are obviously aware of the difficulties the Inquiry is having because of the extent of its work, but it would be helpful if a little extra warning could be given about hearings, both for the families and also those of us who have other commitments.

Mr Keith has addressed the issue of future modules and the difficulties with providing further information about those at the moment. We would join with both the TUC and, I think, NHS England in their submissions about that. I’ll leave it to them to expand, but we would urge as soon as possible that greater particularity could be given regarding those.

Those are my submissions.

Lady Hallett: Thank you very much indeed, Mr Weatherby. It’s all extremely helpful.

I’m sure I don’t need to assure you, but to assure those whom you represent and the public, my mind is open and the Inquiry team is flexible, and the Inquiry team also knows that I wish to get as much information out there to the core participants and to the public as soon as possible, and I promise you that the team is under direct instructions from me to do that as soon as we can.

So I do understand the concerns when you aren’t told what’s going on, but, as you’ve acknowledged, the team are working enormously hard, but we’ll do everything we can. And I also understand the problem with notice of hearings. I know it’s a really, really tight timetable, and I know some representatives weren’t able to be here today for other commitments. I apologise and I don’t apologise, in one sense. I apologise to them and to you when we cause inconvenience, but the reason is, as you know, that I have set a very ambitious timetable, I hope for good reasons.

So thank you for raising those matters, I’ll bear them all very much in mind.

Mr Weatherby: Thank you.

Lady Hallett: Right. Mr Lavery.

I pronounced it correctly today, I hope, Mr Lavery?

Mr Lavery: Yes.

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

Mr Lavery: My Lady, as your Ladyship knows, I represent the Northern Ireland Covid-19 Bereaved Families for Justice, and we have – as we set out in Module 1 preliminary hearing, we are collaborating very closely with the overall group, and Mr Weatherby and I and our team have produced a joint submission, so I’m not going to add to anything that Mr Weatherby set out this morning. I wanted to introduce myself and the team at this stage.

What I said in the Module 1, my Lady, was I looked very briefly at unique factors relevant to Northern Ireland, and I gave a list of those, and I’m very sure that those will be the subject of consideration in Module 2C.

There is some overlap, though, into this module. One of those unique factors is the success or otherwise – probably otherwise, I say with no sense of pride – of devolved government in Northern Ireland. And we have had over a sustained period of time either no Assembly, no functioning Assembly, or, at best, a form of mandatory coalition which, depended on a commentator, does or does not work, and here may not be suitable in the longer term.

So that is a feature of disfunctionality of government, for whatever reasons – we won’t get into those – of Northern Ireland, but it has an impact, we say, at a central government level in terms of what the awareness is of that, what contingency is made for that, what response there is to that and, indeed, how one deals and responds to that ongoing disfunctionality. We’re even responding to a more acute breakdown of devolved government in Northern Ireland.

So these are all issues which may well be looked at as part of 2C, may well be looked at as part of this module. I know that Ms Gallagher, as part of the TUC submission, specifically addresses the lack of government in Northern Ireland for a period of three years immediately preceding the pandemic, and I was assured this morning by Mr Keith that that will be properly looked at as part of Module 2C, and we welcome that and we’ll continue – I will, with Mr Keith and Ms Dobbin – about what falls into 2 and what falls into 2C, and we’ll collaborate hopefully closely on that basis.

Lastly, my Lady, one other aspect that will probably fall more into Module 2 is the relationship between central government in London and Dublin, when one is looking at the island as one epidemiological unit. What exchange was there between the two governments that deal with the land border and what exchange of information, what collaboration was there, and of course the common travel area.

So that’s all I want to say this morning, my Lady. And, as I say, we hope that the collaboration that we’ve seen already will evolve into greater – to make sure that you, my Lady, aren’t faced with any omissions or gaps in the scope of the Inquiry.

Lady Hallett: Thank you very much, Mr Lavery, that’s very helpful. And thank you for any contributions you made to the written submissions, I’m very grateful, I shall bear those issues very much in mind.

Thank you.

Mr Lavery: Thank you, my Lady.

Lady Hallett: Mr Williams.

For those who have to come from the deepest corners, we are trying to work out how to configure the hearing room so you don’t have to come from the darkest corners.

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

Mr Williams: My Lady, it’s avoiding me having to climb over people, so I have to sit in a corner over there.

My Lady, I represent the Covid-19 Bereaved Families for Justice Cymru. Together with the legal team that I lead, it is a Welsh-based and Welsh-focused group, dedicated solely to campaigning for and giving a voice to those bereaved by Covid-19 in Wales.

We have listened carefully to the address by Mr Keith, and we’re grateful for the more detailed information he was able to provide us. That means that the submissions I make will be significantly shorter, which might please some people here, but I’ll deal with those matters which seem to be of particular importance.

First of all, may I thank you on behalf of CBFFJ Cymru for designating it as a core participant in Module 2 hearings of this public inquiry, and for the Chair’s recognition that it is best placed to assist this public inquiry to achieve its aims by representing the collective interests of a broad spectrum of those bereaved by Covid-19 in Wales.

It is vitally important that the people of Wales can have full confidence that this public inquiry will fully scrutinise decision-making in Wales in respect of Covid-19 and that the experiences and voices of the Welsh people will be properly heard and represented.

We welcome the Chair’s indication that this public inquiry will come and hear evidence in Wales on Module 2B, and it may be on other parts of the various modules as well.

This all gives confidence to those I represent that this Inquiry takes the interests of Wales seriously, and intends to do a thorough examination of all those matters which touch upon the interests of Wales and its concerns.

It’s particularly important, in the case of Wales, since there is no separate Inquiry being undertaken in Wales. Frankly we don’t know why that is so. It may be that at some stage in these proceedings the Welsh Government, or Mr Drakeford, can explain it to you. We will have to wait and see who is called to give evidence.

CBFFJ Cymru welcomes the Chair’s commitment to looking at the actions of the devolved administrations. However, as the Chair will be aware, there are still concerns in Wales that the preliminary scope of Module 2 does not set out in specific detail the Welsh-specific issues that ought to be investigated by this public inquiry.

In particular, as may not be appreciated still, Wales is a separate country, with a devolved government. Although Wales receives funding from the UK Government, responsibility for health and social care is devolved to the Welsh Government. Wales has its own healthcare system. This means that the key decisions made in Wales in relation to the Covid-19 pandemic were largely separate to and quite often different from those taken in the UK Government.

Clearly, Wales has strong links with the UK Government and the other devolved governments, and it will obviously be necessary in Module 2 to unravel the links between these governments, both the formal and informal links, and to see the extent to which they influence the Welsh Government, whether for good or bad.

In relation to Module 2, CBFFJ Cymru would wish to highlight some of the areas of concern that this public inquiry must scrutinise in respect of Wales, but it may be that now is not the time or the place to go into those in great detail, having heard other matters raised by Mr Keith.

There are, however, just a few little matters I would like to comment upon which need to be emphasised. We need to know the extent to which there was a sharing of knowledge between Wales and the UK Government, in particular on scientific and medical matters. We need to know the actions taken or not taken by the Welsh Government, whether they were influenced by and why they differed from decisions taken by the UK Government.

We need to know whether the actions taken or not taken by the Welsh Government were justifiable in the light of the state of knowledge, whether expert, medical or otherwise. We need to know to what extent were the decisions of the Welsh Government supported or not supported by expert opinion.

Then, this is rather an open-ended consideration, this is at paragraph 8(e), we need to know the extent to which the actions of the Welsh Government were influenced by political considerations. Whether they were influenced or not remains to be seen. We have had no information outside of this Inquiry concerning that matter, although, by common consensus, in Wales at least, it was greatly influenced by political matters.

There are further matters, one of which was raised by Mr Weatherby, and that’s the question of superspreader events. This is part of a wider topic, which is that the scope raises different issues in respect of Module 2, England, Module 2A, Module 2B and Module 2C. So the superspreader issue is raised in respect of Scotland, Module 2A. There were similar events in Wales. In particular, one close to my heart, the rugby international between Wales and Scotland was cancelled the day before it was due to take place in 2020, but it was cancelled after very large numbers of Welsh and Scottish supporters had descended on Cardiff, tens of thousands, and consideration will need to be made to perhaps drawing a more consistent approach to the four countries so that those issues are covered.

My Lady, the matters I was going to make further submissions on have been met by Mr Keith’s submissions and touched upon by Mr Weatherby. I don’t intend to repeat them any more.

Lady Hallett: Very grateful, Mr Williams, thank you very much. As you know, but I need to emphasise, whether or not a devolved nation institutes an inquiry of its own is not a matter for me and I’m not entering into that debate; I just will cope with or co-operate with whatever happens.

As far as some of the matters you’ve raised, I suspect they are already intended to be covered but it may be that, as Mr Weatherby was saying, we can make matters more explicit to allay any concerns. But anyway, thank you very much for your very helpful submissions.

Right, Scotland and Ms Mitchell, I think.

Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Ms Mitchell: My Lady, I represent the Scottish Covid Bereaved, as instructed by Aamer Anwar & Company.

We note that Module 2 covers a very broad range of issues, and it’s acknowledged that this module has ambitious scope. We note that the Module will explore how, in overarching terms, the central government responded to the pandemic. For the Scottish Covid Bereaved at this first preliminary hearing, the following four issues are raised.

One, disclosure. As with the first preliminary hearing for Module 1, we have no disclosure as yet. We understand the process of receiving disclosure in tranches will begin before Christmas 2022. We welcome the process beginning as soon as possible in order that we can assist the Inquiry in identifying any areas which may not have been considered as yet.

Given the very significant number of documents requested in the Rule 9 applications and their undoubted voluminous nature, does the Inquiry envisage any potential delays with the recovery and the time required for consideration of such disclosures?

Senior Counsel to the Inquiry this morning makes it clear that there is no requirement that Rule 9 applications be disclosed to core participants, and of course no issue can be taken with that as a matter of fact.

Of course, equally so, there is no requirement that Rule 9 applications not be disclosed to core participants. It might be imagined that Rule 9 responses may call for other Rule 9 requests, and Senior Counsel to the Inquiry this morning has acknowledged that that will be likely. The disclosure of Rule 9 requests to core participants would allow core participants to bring their own knowledge and understanding. I make no criticism of the legal team to the Inquiry but that’s a knowledge and understanding that may not necessarily be held by the legal team, as to whether certain documents ought to be requested.

If the documents were disclosed, this would cut down the possibility of delay in the disclosure process and the necessity for lengthy additional Rule 9 requests.

The ingathering of relevant evidence is key to an understanding of how central government responded to the pandemic. A transparent system of disclosure of course enhances the robustness and the legitimacy of the process, and I would encourage my Lady to consider in particular that last point as to whether or not, particularly with these high level decision-making processes, the Rule 9 requests ought to be disclosed to core participants.

Two, modules. We appreciate Senior Counsel to the Inquiry setting out, as he stated, very broadly the topics of the future modules, and indeed it was ourselves that requested if that could be done. We did so to help the Scottish Covid Bereaved understand what shape the Inquiry will take and to allow them to see whether areas of particular concern to them will be dealt with in later modules. And albeit the scope was very broad this morning, we thank Senior Counsel to the Inquiry for setting out what those are. We of course appreciate that more detail can’t be given at the moment, but we invite Senior Counsel to the Inquiry to let us know as soon as possible when greater specification becomes available.

Three, evidence. We noted in the first hearing that the proposed length of the first module was hoped to be a month. We note that Module 2 will be approximately two months. We would seek clarification: does the two-month period include the hearings on the discrete sub-modules in that timeframe? We will raise separate issues in relation to evidence in relation to the module that relates to Scotland alone, so I will say no more in relation to evidence this morning.

Four, the Listening Exercise. As doubtless the Inquiry fully appreciates and has now stated on a number of occasions, finding out what people went through at the time of Covid is fundamental to the Inquiry’s understanding of the process. As no doubt the Inquiry fully appreciates, finding out what happened, for example in a hospital setting, will rarely be found by scrutiny of documents alone. The Scottish bereaved understand that, whilst not direct evidence, the Listening Exercise will be an important part of finding out what happened to people during these times. We note the terms of the letter by the Solicitor to the Inquiry dated 13 September 2020, which was made available online on 4 October, setting out in some detail how that will work, and we are grateful for that additional information.

We now ask for some further specification. It would assist those we represent to know how the report will fit into the hearing process. I know my Lady has already touched upon in this at the preliminary hearing for Module 1, but what we would like to know, for example, is: will the Listening Exercise still be running contemporaneously with the hearing of evidence? We ask that question because it’s anticipated that there may be people who listen to the evidence as it comes out and perhaps do not recognise their experiences reflected in the evidence as it is led, and then decide to contact the Listening Exercise to share their position.

It would be helpful to know whether there will be a delay after hearings to allow those who may have been influenced by what they heard to have their say as part of the Listening Exercise.

Further submissions for the Scottish Covid Bereaved will be made in hearing for Module 2A tomorrow.

That’s all at the moment, my Lady.

Lady Hallett: Thank you very much, Ms Mitchell, helpful as ever.

As you know, given the particular situation with Scotland and what’s been happening with the Scottish Inquiry, the situation is such that it’s not straightforward for me to give the kind of clarity that I would like to give at this stage, but I can promise you we are working on giving the Scottish people and the Scottish bereaved as much information as we can as soon as possible, because I appreciate it’s far from clear at the moment.

Ms Mitchell: I’m very much obliged.

Lady Hallett: Thank you very much.

Oh, and I can emphasise that I think – I can say this straightaway, the Listening Exercise, the intention is that it will run throughout the time of the Inquiry.

Ms Mitchell: I’m obliged for that clarification, my Lady.

Lady Hallett: Thank you.

Right, Ms Twite.

Submissions on Behalf of Just for Kids Law, Save the Children UK and the Children’s Rights Alliance for England by Ms Twite

Ms Twite: My Lady, I represent Just for Kids Law, Save the Children Fund and the Children’s Rights Alliance for England. I’m instructed by the in-house legal team at Save the Children.

Those children’s rights organisations make a joint application for core participant status and they are jointly represented at this Inquiry.

At the outset they wish to clarify that they are grateful to this Inquiry to be designated as core participants and, further, for the acknowledgement that you gave when designating them as such of the specific impact that the Covid-19 pandemic had on children and young people.

By way of, I hope, a brief introduction to those organisations, we wanted to acknowledge that today’s generation will forever be the Covid generation. Sorry, I meant to say today’s children will forever be the Covid generation. The impact on them goes far beyond the closing of schools and other education settings. At times, the practical effect of the lockdown rules meant that children were prevented from seeing others their own age, even when adults were allowed to meet friends from other households. During the first lockdown, while outdoor exercise was allowed for adults, there was a lack of clarity about whether children could play, and fences went up around playgrounds. Soft play centres were among the very last places to receive guidance about re-opening.

Many of the non-pharmaceutical interventions which affected everyone, disproportionately affected children. Six months in the life of a 12-year old is vastly different to that of a 28-year old; children’s lives were turned upside down at crucial stages for their development. And there were many specific impacts, such as children who were awaiting trials in the criminal justice system, many turned 18 and lost protections that would have been afforded to them when they were children.

Despite this and many other impacts that I don’t have time to go into, children were not systemically identified as a vulnerable group requiring additional support to cope with restrictions. And the impact on children, the rights of children, were not considered adequately or even at all in many key decisions.

The children’s rights organisations I represent today spent the pandemic both directly supporting and working with children affected by such matters that I have just addressed, as well as advocating for their voices and their rights to be heard by government.

For example, Save the Children Fund, which is the UK member of the Save the Children movement, launched the emergency response programme to support families, following which they published a report drawing on the experience of over 7,000 families with children aged between 0 and 6 years old.

Just for Kids Law provided legal representation and advocacy support to children and young people on many issues throughout the pandemic, including those arrested for breaching Covid laws and kept in police stations, those whose cases were delayed, those who faced homelessness and those who had insufficient support from their local authorities. They also campaigned for children to be treated distinctly by the court system, by the Department for Education, and in respect of the lockdown rules.

Just for Kids hosts the Children’s Rights Alliance for England, a membership organisation with over 100 members from across the children’s sector. The Children’s Rights Alliance and its members were also campaigning for children’s rights to be considered in particular through the use of children’s rights impact assessments.

These organisations share a concern that the children’s voices were not heard and that children’s rights were not respected. That concern in particular was highlighted when the initial draft of the terms of reference to this Inquiry were published. Those terms of reference did not initially include a reference to the impact on children and young people.

My Lady, you undertook a public consultation and, as a result of that, you recommended that the terms of reference were updated, one of those recommendations being that the impact on children and young people be included, which they were.

And the children’s rights organisations now hope to assist this Inquiry and your team in assessing the issues as regards children within the pandemic.

I will address you briefly, if I may, on four specific issues, the first of which is the scope of the Inquiry.

We addressed our submissions on scope in paragraph 14 of our written submissions, and the proposed scope for this module has six individual parts. Our primary submission throughout is that the rights and the impact on children run through each and every one of those parts. And we give some examples of how children’s rights are connected to those considerations before this Inquiry in our written submissions, which I don’t repeat here.

I do make it clear that our submissions deal with examples of how children were impacted; they’re not intended to be an exhaustive list of the matters that relate to children that will need to be considered in this module. We expect that the rights of children, and indeed other groups, many of whom’s rights are represented by other core participants here today, should be incorporated in key decisions at every stage.

We did not ask in our written submissions that the rights of children are explicitly stated or set out in the scope, and that was partly out of a concern that if children are added as an extra point to consider, that may have the unintended effect of undermining rather than strengthening their importance, because they may become an additional consideration at the end rather than an integral consideration at the heart of the decision-making.

We note that some core participants have taken a different approach, and in particular, my Lady, you have received submissions on behalf of the Covid-19 Families for Justice and the Northern Ireland Covid-19 Families for Justice. At paragraph 7(d) of their submissions they suggest adding to the scope by questioning which vulnerable groups were considered and they list those potential vulnerable groups.

We certainly agree that these are important considerations for the Inquiry, and we note that Mr Keith indicated this morning that the team will reflect upon those submissions. Were you minded to amend the scope in such a way as to spell out these vulnerable groups, we submit that children and young people should be added to that list.

But whether or not the scope is amended or whether, as has been proposed by others, a list of issues is created, we simply ask that children and young people are considered in any such list and that it is clear in the scope or in the list that these are not a separate consideration but at the heart of every decision, and essentially we are neutral as to exactly how that is put in terms of writing the scope.

The second point is about the scope of further modules. Other core participants have stated it would be useful to know the shape of future modules, and we are grateful to Mr Keith for providing further information about those future modules this morning.

In addition to doing so, he stated that further detail as to the further scope cannot be given at this stage, and we do appreciate the difficulties in doing that.

However, we only ask for thought to be given as to how the issues in this module will overlap with future modules and how they will be dealt with in this matter.

For example, the lockdown included the shutting of schools and Mr Keith confirmed this morning that this module will consider the economic and social impacts on a number of matters including education, and we simply ask how those considerations will interact with future modules on education, and have similar questions about modules on courts and prisons and children and young people which are also of concern to the organisations that I represent.

We note further representations have been made about this by the TUC in their submissions, and we endorse the submission that this needs to be given some further consideration.

Thirdly, I come to the Rule 9 requests. In our written submissions we didn’t take issue with the proposal that a Rule 9 request would not be disclosed to the core participants, which was in line with your ruling following the Module 1 hearing. However, having considered the matter further and taken further instructions, we do support the submissions made by other core participants that the Rule 9 requests themselves be disclosed.

As I stated, we do acknowledge your ruling on Module 1 but we endorse the submissions made by Mr Weatherby that, given Module 2 has quite a different focus, it is certainly open to the Inquiry to make a different ruling, and I don’t repeat the submissions made quite ably by Mr Weatherby on that point already.

There are two points we wish to make. Firstly, we endorse the submissions that you have already heard at length, and I don’t repeat, by other core participants, in particular regarding transparency and the practicality of such. Save for, I do want to pick up the point made by the Southall Black Sisters and Solace Women’s Aid. In their written submissions at paragraphs 11 and 12, they state that the government failed to consider the impact on women and girls in their decision-making, and they go on to make the point that omissions are hard to identify, and it makes it all the more important to be able to see the Rule 9 requests, to ensure that nothing is missed.

The same point is true for children. It’s very much the case that a lot of decisions simply did not consider the impact on children and, therefore, the children’s rights organisations will wish to draw attention often to what is not said or not considered. Essentially, we will be trying to show a negative.

Mr Keith has told you about the impracticability of simply asking for everything, given the number of documents that must be relevant in an Inquiry such as this, and we are told that disclosure will be targeted and we accept that may be necessary.

The difficulty that arises from that is that the Inquiry will need sufficient disclosure to make proper inferences as to matters that weren’t considered as well as to matters that were.

Mr Keith did acknowledge this in his submissions to you this morning and indicated that there will be sufficient disclosure to ensure that such points can be made, and we’re grateful for that indication and the fact that that’s very much a matter that the Inquiry team are alive to.

Our simple point is that we can assist with ensuring that Rule 9 requests cover sufficient disclosure to make these points that we are concerned with, and that we may be in a position to assist the Inquiry team in these matters, given these are matters that the children’s rights organisations have been working on for some time.

And further, that if we wait for the disclosure that we are told will come, it may well cause delay because it may mean that the children’s rights organisations are making points later in the process that could have rightly been made earlier on.

The second point I wanted to make on the Rule 9 requests is this: the children’s rights organisations, along with other core participants, have made specific submissions within their written submissions about what Rule 9 requests should be made, such as who should be asked for – sorry, which organisations should receive Rule 9 requests, and have sought clarification as to whether or not certain requests or certain lines of inquiry have been pursued.

We will no doubt make more such inquiries. For one example, we support the request for equality impact assessments to be asked for, and we would also ask that children’s rights impact assessments, which can’t simply be substituted by an equality impact assessment, also be asked for from government departments.

But we find ourselves in the position where we don’t know whether such requests have already been made, or maybe something similar has been asked for, or something else has been asked for that makes our request less relevant to the questions of this Inquiry. And our submission is that it is potentially more work for a core participant to be second-guessing what the Inquiry team are doing and checking whether the Inquiry team have – whether a certain line has been pursued, than it would be simply to see what has been asked for and make further suggestions based on that.

Mr Keith quite rightly said this morning that the core participants should not attempt to duplicate the inquisitorial role of the Inquiry team, and I wish to assure the Inquiry team that the core participants have no wish to do so but simply to assist the team, but it is difficult to do so blind.

The fourth point and final point I wish to address my Lady on is about the Listening Exercise. The intention behind the Listening Exercise is very much welcomed by the children’s rights organisations. It is fundamentally important that children’s voices are heard as part of that, especially given our concern that children’s voices have been very much lost within this pandemic.

It is, I am sure, an obvious point, but there is a particular urgency for hearing children’s voices. Everyone’s memories are fading but especially younger children will find it increasingly difficult to contribute meaningfully as time passes. In order for children to take part, it will also be necessary for some children to have support, especially younger children or those with additional needs. That does not need to be legal representation, and in fact we endorse the Inquiry’s approach that this be a non-legal process.

At this stage this is really a request for information. And I know we were reassured this morning that more information is coming, and we are grateful and welcome that. In particular, we want to know how children will be encouraged and told about the Listening Exercise, how they will be supported to take part. Of course, that cannot be one answer for all children, there will be different answers for children in different age groups and those with different backgrounds and characteristics. There will be children who are particularly hard to reach. We are particularly keen that children in custodial settings get their voices heard, many of whom during the pandemic were locked in cells for 22 and a half hours a day. But we also ask for confirmation from your Inquiry team that children will be engaged and supported to take part in this process.

So we ask at this stage for conversations with your Inquiry team to happen quickly, given the urgency for engaging children that we have outlined, and emphasise our willingness to engage and collaborate with your team on how to plan for and support children and other young people in this.

The organisations I represent do engage with and support children and young people and assist them in engaging with government decisions at many levels, and so we offer our support in that matter, and indeed our willingness to engage on all issues in this Inquiry or aspects of the Inquiry as matters arise.

Those are the submissions on behalf of the children’s rights organisations.

Lady Hallett: Thank you very much indeed, Ms Twite. You made some excellent points, as indeed everybody has to date.

As far as the detail on subsequent modules is concerned, at the moment my hope is that by having children’s rights organisations involved in this module and then having later modules which deal more specifically with the impact on children and young people, we can ensure that we do investigate, that I investigate fully and properly every – all the impact upon children and young people. We will give you as much detail as we can as soon as we can, and I’m sorry there is not more available, but I’m afraid I have been making some pretty dreadful impositions on the Inquiry team so far and they do need to get the odd hour’s sleep, so I promise you we will get to it as soon as we can, because I appreciate how much it would assist you to know – and others, indeed – what’s going to be dealt with here and what’s going to be dealt with there. But we will give you information when we can. May I also say, having dealt with children’s memories in another role, you make an excellent point about the fading of children’s memories and the Listening Exercise, one that I confess I hadn’t thought about until you mentioned it, and I will make sure that we look into that immediately. So thank you very much indeed.

Ms Twite: Thank you.

Lady Hallett: Right. Who is next? Disabled people’s … yes, please, Ms Sivakumaran. Please tell me how to pronounce your surname. Mr Lavery quite rightly did.

Ms Sivakumaran: It’s Sivakumaran, my Lady.

Lady Hallett: Sivakumaran, thank you very much.

Right. Now, are you speaking all together for the two organisations you’re representing?

Ms Sivakumaran: Yes, that’s the intention.

Lady Hallett: Thank you very much.

Submissions on Behalf of Long Covid Groups and Disabled People’s Organisations by Ms Sivakumaran

Ms Sivakumaran: So, my Lady, I appear on behalf of the three long Covid groups, along with Anthony Metzer King’s Counsel, and Sangeetha Iengar. I also appear on behalf of the disabled people’s organisations, who have all been granted core participant status. I am instructed by Bhatt Murphy Solicitors for both groups.

As you are aware, Anthony Metzer King’s Counsel has provided sincere apologies for not being present today. He has sought hard to attend at least remotely, but has not been able to be excused from deputy high court judicial training, and I’m sure that you will accept that there is no discourtesy intended to my Lady or to the parties by his absence.

Lady Hallett: Of course.

Ms Sivakumaran: You will have observed from both groups’ written submissions that they share common positions on procedural matters that are being considered today, and it’s for that reason that I propose to address you on each group’s status as core participants before making joint submissions on the remaining matters on the agenda. Turning first to the long Covid groups, three groups have been granted core participant status due to their significant interest in the matters examined under Module 2. They are Long Covid SOS, Long Covid Kids and Long Covid Support, they are grateful for this opportunity to represent the collective interests of their members and the 2.3 million adults and children – that is at least 3.5% of the population – who are victims of long Covid. It would perhaps be helpful to open with a short introduction about each group. Long Covid Support was established in March 2020 as a Facebook group and has grown quickly since then. Their Facebook support group now has over 56,000 members globally, with 23,000 based in the UK. It has become a go-to resource and community for people suffering from long Covid. They campaign and advocate for recognition, rehabilitation and research into treatments in the UK and facilitate international support for those with long Covid.

Long Covid SOS was established in June 2020 as a volunteer-run patient advocacy and campaign group. Nearly 4,000 people have signed up to their website and they’re an important voice for those with long Covid. They promote recognition and understanding and advocate for the support of people with long Covid by working with relevant government departments and institutions. They also campaign for more research into long Covid.

Long Covid Kids was established in September 2020 by a group of families whose children have become victims of long Covid. They have grown to provide support services for 10,000 families and they continue to represent those families’ interests in relevant national stakeholder forums.

They are all representative organisations of victims of long Covid.

In their written submissions at paragraph 3 to 7, the long Covid groups have explained why they consider themselves as victims of Covid-19. Long Covid, as you may be aware, is the term used to describe the prolonged and fluctuating symptoms following an infection of Covid-19, and it has been defined by NICE as the signs and symptoms which continue for more than 12 weeks and are not explained by an alternative diagnosis.

Many previously fit and healthy individuals have suffered profound changes to their lives as they continue to experience the effects of the disease. They have had to fight hard for its recognition as an illness and disability, and they wish to underscore that they are suffering from the disease itself, and this is why they are asking the Inquiry to recognise their status as victims of Covid-19.

As I mentioned earlier, 3.5% of the population are believed to suffer from long Covid at the most recent statistical analysis. This is a significant cohort of the population and they were not mentioned by Mr Keith King’s Counsel’s review of the events and impact of Covid since December 2020. This may have been a simple oversight but its mention, as long Covid groups’ experience of the pandemic, is one of oversight. During the pandemic the individuals suffering from long Covid, feeling overlooked by government decision-makers who failed to recognise and respond to long Covid, meant that they had to come together and they formed their groups, whose whole purpose is to advocate on their behalf. In pursuit of government recognition and improved government decision-making, they made direct interventions at the highest levels of government on the risks of long Covid and the need for public recognition and public messaging relating to long Covid.

As an example, all three long Covid organisations were consulted as part of the Department of Health and ministerial round table on Covid-19 with NICE, ONS and NHSE. There were monthly meetings, twice chaired by the Secretary of State of Health and Social Care, and as participants to the round table, the long Covid groups provided recommendations to ministers on important issues, such as the need for public messaging identifying the risks of chronic illness and disability from SARS-CoV-2, and they voiced concern for the pressure on the NHS that sickness and absence due to long-term illness would inevitably cause.

All three organisations have become important public voices for the long Covid community since the early stages of the pandemic, and they have been part of government taskforces as well as providing advisory roles on NIHR-funded research projects. They anticipate being able to assist this Inquiry by sharing their perspective of the suffering of those with long Covid as well as their experiences of engaging with administrative and political decision-makers during the pandemic.

Although initially concerned about the limited explicit reference to long Covid in the terms of reference, the long Covid groups have welcomed my Lady’s comments in the final consultation summary report on the terms of reference.

Long Covid groups have been reassured by your commitment that you will read the terms of reference as including the need to investigate the extent to which risks associated with long Covid were considered, including investigation into how decisions were made, communicated and implemented.

They have welcomed Mr Keith King’s Counsel’s comments this morning when he mentioned that the investigation for Module 2 will consider whether the likely impact of long Covid was sufficiently assessed and will be investigated within this module.

They reaffirmed their commitment to fully assist the Inquiry in its investigations as they seek answers to why the risks of long Covid and the risks of chronic illness and disability were not seemingly factored into the government’s response to the pandemic.

Mr Keith: My Lady, I do apologise for interrupting Ms Sivakumaran. I wonder whether that’s an appropriate time to take the break, which I know the Inquiry staff I think were anticipating would be around about this time.

Lady Hallett: Sorry, I thought they were expecting it to be at about 1.00 – no, Mr Smith is shaking his head. Apologies.

On the last occasion I think I forgot Ms Gallagher after lunch, so at least it will be – with any luck I won’t forget you after lunch, Ms Sivakumaran!

Right, if it’s 12.45, come back at 1.45.

Mr Keith: Please.

Thank you, my Lady.

Lady Hallett: Thank you.

(12.46 pm)

(The short adjournment)

(1.45 pm)

Lady Hallett: Right, thank you very much. Sorry to have interrupted you.

Ms Sivakumaran: My Lady, I’ll be turning next to the disabled people’s organisations, and these submissions are made on behalf of Disability Rights UK, Disability Action Northern Ireland, Inclusion Scotland and Disability Wales.

Disability Rights UK was founded in 2012 and is a leading national disability organisation led by disabled people. The majority of trustees and staff are disabled people and their work is rooted in an experience of disabled people and gives a voice to their concerns through campaigning for central and local government improvements in policies and services as well, as providing information and advice.

Disability Action Northern Ireland originated in the 1950s. It is now the largest Northern Ireland-wide pan-disability organisation working with disabled people, and it’s an umbrella organisation for more than 300 organisations led by disabled people, and they advocate for the rights of the deaf and disabled.

Inclusion Scotland is a national network of disabled people, their organisations and allies. It works to achieve positive changes to policy and practice so that they are fully included throughout Scottish society as equal citizens.

And Disability Wales is a Welsh national association of disabled people’s organisations, striving to achieve rights and equality for all disabled people in Wales. Its core role is to represent the views and priorities of its members to government with the aim of informing and influencing policy, and they have a hundred member organisations across Wales, 29 of which are full member disabled people’s organisations.

All four organisations are run by and for disabled people, they are majority led, directed, governed and staffed by disabled people, and they use the term “disabled people” to mean people facing disabling societal barriers due to their impairments or conditions, regardless of their age. This includes physical impairments, mental health conditions, hearing impairments, deaf people with British Sign Language as their first language, visual impairments, learning difficulties, and neurodiverse people.

They are grateful for their recognition as core participants in Module 2 and are committed to assisting the Inquiry by representing the interests of their constituents and those with pre-existing health inequalities.

The disabled people’s organisations emphasise that inequality is at the heart of their experience during the pandemic. First, the pandemic had a disproportionate impact on them. They were at significantly greater risk of death from Covid-19. Disabled people made up six in ten deaths from Covid-19, which increased to seven in ten in Wales.

Secondly, they suffered disproportionate hardship and significant harm as a result of the failure to consider their needs when responding to the pandemic. This included psychological distress, unequal access to emergency health treatment, social isolation and loneliness as well as difficulties accessing the most basic of necessities, such as food, medicine, personal protective equipment and social care.

Throughout the pandemic, all four disabled people’s organisations actively advocated for their interests to be considered by relevant decision-makers. They have a significant interest in this Inquiry’s investigations because of the profound impact of the pandemic on disabled people.

My Lady, turning now to our submissions, we have one preliminary observation on behalf of the long Covid groups as well as the disabled people’s organisations, and that is in relation to reasonable adjustments.

We are grateful for the indication this morning that the Inquiry will review its arrangements for access to the proceedings. We note that we do have a joint request for the Inquiry to consider reasonable adjustments to the proceedings as well as the publication of evidence to ensure that the Inquiry is accessible to the public.

To this end, the long Covid groups and the disabled people’s organisations would encourage the Inquiry to work from a social model of disability. That is, to identify the barriers to access, and remove or mitigate them.

A number of simple proposals have been set out in the disabled people’s organisations’ submissions at paragraph 12, and they would invite the Inquiry to consider adopting them. In addition, both groups are willing to be consulted by the Inquiry on improving access and to provide any further assistance or feedback on accessibility within the Inquiry proceedings and their publication of evidence.

Turning next to our substantive submissions, the long Covid groups and disabled people’s organisations share common positions on the relevant matters on the agenda. We rely on both our written submissions and I therefore do not intend to repeat them in detail, but I do wish to summarise the following points.

Turning first to the issue of scope of Module 2, the disabled people’s organisations, with the support of the long Covid groups, have raised concerns about the absence of reference to inequalities in five out of six paragraphs of the scope of Module 2.

My Lady, you have committed to inequalities being at the forefront of the Inquiry’s investigations in your opening statement in July 2022, and most recently in your grant of CP status for the disabled people’s organisations. If inequalities are truly to be at the forefront of the Inquiry’s investigations, we respectfully submit that they should be threaded throughout the scope and not reserved to paragraph 3 of 6.

At paragraph 17 of the disabled people’s organisations’ written submissions, they have made a number of suggestions on how inequalities could be added to the scope of this module. We would invite you to consider those suggestions. In our submission, it’s not sufficient to give voice to a commitment to address inequalities, it must also be acted upon. Amending the scope to explicitly include examination of inequalities in all aspects of administrative and political decision-making is giving effect to that voiced commitment.

It’s unnecessary to repeat our submissions on the disproportionate risk of death and hardship that disabled people faced during the pandemic. We explain simply that our submissions in relation to scope are informed by their lived experience. They are looking to the Inquiry to ask the difficult questions as to whether their circumstances were taken into account and when those decisions were made; and if not, why not.

We note that their concerns about the scope are shared by other affected groups, including the bereaved families, the children’s interest groups, Solace Women’s Aid and Southall Black Sisters.

It is for those reasons that we invite you to consider how scope is addressed in relation to inequalities.

There are two further issues that we raise in respect of scope. First, we would invite the Inquiry to develop the issues which will be covered in the scope in consultation with core participants to realise an agreed list of issues. The scope of Module 2 is, as Mr Keith King’s Counsel has noted in his note, wide and ambitious. There is a need for clarity on what issues the Inquiry team will have in mind during its investigations, as well as the delineation between Module 2 and other modules. A list of issues will help to provide structure to the investigation in the module, informing decisions on relevance of evidence, lines of inquiry, and identification of witnesses to be called.

We have set out at footnotes 7 to 11 on page 6 of the long Covid submissions, and at footnote 13 on page 9 of the disabled people’s organisations’ submissions, the practice of other Inquiries who have developed lists of issues. In our submission, it has become good practice to develop a list of issues in consultation with core participants in an Inquiry, and we would look forward to an opportunity to effectively assist this Inquiry by contributing to the development of an agreed list of issues for Module 2.

This is not a prescriptive or determinate list but rather an iterative list, which can be added to and can be adapted as further lines of inquiry are developed through disclosure of Rule 9s and further evidence.

Secondly, on behalf of Inclusion Scotland, we would invite the Inquiry to clearly state how they intend to minimise duplication with a Scottish public inquiry, as required by the terms of reference. We understand this is necessary as envisaged by the terms of reference but we would simply ask for transparency of that approach.

Turning next to the question of the Rule 9 requests, we wish to make three short points. We note that all organisations have been requested to provide a chronology and corporate statement setting out a narrative of relevant events and the lessons to be learnt. We would strongly encourage the Inquiry, if it has not already done so, to ask the relevant organisations to ensure that the corporate statement addresses the organisation’s understanding of its responsibilities, remit, processes, policies and resources in place at the time. Not only will this put into context any lessons that are purported to have been learnt, these statements will also clarify what the organisation’s position is in relation to the narrative of the relevant events.

On behalf of the disabled people’s organisations, the Inquiry is requested to ensure that, to the extent this is not already addressed, a Rule 9 request is sent to the relevant organisations and departments asking whether they considered themselves responsible for assessing the impact of their decisions in relation to the pandemic on disabled people, and if not, who they thought held that responsibility.

The disabled people’s organisations have identified two further departments which should be subject to Rule 9 requests, if not already captured, at paragraph 24(a), and we are grateful for the indication this morning that this request will be considered.

Turning to the issue of disclosure, we make three points, and these are advanced in the interests of transparency and open co-operation. We recognise that ultimately it is a matter for the Inquiry to decide on the scope of disclosure. However, we would invite the Inquiry to disclose the list of key narrative events, decision-making procedures of bodies and persons relevant to the core political and administrative decision-making, and the core decisions that were referred to at paragraph 44 of Counsel to the Inquiry’s note and which he referred to this morning.

We would suggest that core participants are provided with the opportunity to feed into the list to ensure that there are no gaps in disclosure. Core participants are acknowledged to have a role to play and can only effectively participate if they are included. This could be by way of disclosure of the Rule 9 requests or by disclosure just of the list of events, persons and decisions that have been identified by the Inquiry.

The purpose of this request is to assist the Inquiry not to obstruct it, and we would support the Bereaved Families’ submissions and others that this approach to disclosure is a novel approach and we would encourage the Inquiry to adapt to these circumstances and consider disclosing those events and persons and decisions.

We would also invite, in our second request on disclosure, the Inquiry to disclose the statements from document providers explaining their document review. It would be helpful if document providers could, when preparing those statements, confirm if documents had been deleted before or after there were taken steps to retain potentially relevant material, for example through the use of WhatsApp, Signal or Cabinet Office Instant Chat applications. In our submission, this would be a helpful indication to give in their statements.

Finally, on behalf of the disabled people’s organisation, the Inquiry is invited to request disclosure from all relevant government organisations and institutions of their relevant equality impact assessments. And where not carried out, a statement confirming this and the reasons.

Turning to the issue of expert witnesses, we welcome the Inquiry’s commitment to disclose the identity of the witnesses and the questions they will be asked, and we ask only that this is done as early as possible so that we may effectively assist the Inquiry in considering whether the experts address all relevant issues, raise any objections we may have, and to suggest alternative experts where appropriate.

We understand that there is already a provisional list and early disclosure of that list would assist us in providing our observations.

In respect of the Listening Exercise, long Covid groups and the disabled people’s organisations make two core submissions. We welcome the note from the Solicitor to the Inquiry that was published today offering core participants an opportunity to feed into the design of the Listening Exercise, and we hope this marks the start of a collaborative approach with both the long Covid groups and the disabled people’s organisations, who would welcome the opportunity to work with the Inquiry to develop this exercise and to achieve its full potential.

We would, however, also note that the Listening Exercise cannot replace the need to hear direct personal testimony within the Inquiry’s proceedings. You have already noted that individual evidence of circumstances of death should be admitted if relevant to possible systemic failings in your Module 1 ruling. The terms of reference at C anticipate the Inquiry will listen to accounts of individual cases of harm as well as death. Both the long Covid groups and the disabled people’s organisations submit that individual evidence of harm which is relevant to systemic failings should be heard within the main module structure of the Inquiry, including Module 2, not least because we invite you, as the Chair, to hear directly from individual voices of people who have suffered hardship or loss as a result of the pandemic. As currently proposed, we infer that you will not be personally hearing individual testimony gathered in the Listening Exercise. The terms of reference recognising that the Inquiry will be listening to these accounts will inform the Inquiry’s understanding of the pandemic, the response and lessons to be learnt.

Accordingly, we would invite you to hear directly from a representative sample of these voices. Anonymised abstract evidence cannot do justice to their experience and in its absence there is a real risk that context will be lost.

As an overarching point in relation to the Listening Exercise, the disabled people’s organisations’ submissions on reviewing access to the proceedings is especially relevant to the Listening Exercise. The Inquiry is invited to develop the outreach strategy in consultation with them and with the long Covid groups to identify the barriers to access and seek to remove or minimise those barriers.

The Inquiry is reminded of the danger of certain groups and their harmful experiences being airbrushed out of history if reasonable adjustments are not made.

Our final point, which is expressed in the spirit of co-operation and a desire to assist the Inquiry, is that the long Covid groups and disabled people’s organisations are willing to provide organisational statements of their experiences of engaging with the administrative and political decision-makers about the need to consider their interests when making decisions in response to the pandemic.

We noted Mr Keith King’s Counsel’s comments that Rule 9 requests will be made to civil society and special interest groups, and they simply say they have been active in making – and interest groups. The long Covid groups and the disabled people’s organisations welcome that comment and those observations, and they’re offering, through the provision of statements and supporting evidence, to assist the Inquiry by providing the picture from the other side of the window from the government organisations which have provided evidence so far.

We anticipate that the Inquiry will have in mind the need to hear from all perspectives, not only non-governmental – not only governmental perspectives, and would welcome the opportunity to assist the Inquiry in this respect.

My Lady, this is all I wish to raise, unless I can assist you further.

Lady Hallett: Thank you very much indeed. Again, some points you make with considerable force.

As far as hearing direct evidence during the Inquiry public hearings, I’ve made clear and I hope now allayed some concerns on the part of the bereaved that I would be hearing and intend to hear from individuals about the circumstances they experienced where they related to possible systemic issues in the modules and in the public hearings. I only mention the bereaved because, of course, I was dealing with the concern that they had raised. I fully intend, where relevant, to hear evidence from individuals with other – for example, with individuals with disabilities, about their experiences where they relate or possibly raise issues of systemic failings. So I hope I can allay that concern immediately. And I apologise if the language used before didn’t make that clear. We were dealing with a specific concern. We should have made it clear whether it intended to apply more broadly. So it definitely does. And obviously it would also include people with long Covid if they had evidence that might relate to possible systemic failings.

As far as accessibility and reasonable adjustments are concerned, I for one and I know the Inquiry team would welcome the kind of advice that the groups you represent can offer to the team to make sure we make every reasonable adjustment that we can, because it’s essential that they are able to participate effectively, and not only in the Inquiry hearings and in this kind of hearing but also, as you say, in the Listening Exercise. And that has always been our intention, and that’s why we have sought professional expertise as to how best we can do it.

The only other matter I wanted to raise at this stage, and I’ll consider all the other points you make obviously very carefully, is the relationship with the Scottish Inquiry. As I said to Ms Mitchell earlier, we were working on a memorandum of understanding on how we would avoid duplication and how we’d work together with the previous Chair, but obviously things have had to wait until the new Chair can get his feet under the table and we can make some progress. But it’s very much an item on my quite lengthy to-do list.

Thank you very much indeed for your help.

Ms Sivakumaran: Thank you very much, my Lady.

Lady Hallett: Right. Is it Ms Davies next?

Submissions on Behalf of Solace Women’s Aid and Southall Black Sisters by Ms Davies

Ms Davies: My Lady, thank you.

I represent Southall Black Sisters and Solace Women’s Aid, and I’m instructed by Public Interest Law Centre, and I appear with junior counsel, Marina Sergides.

SBS and SWA, which is how we refer to them, are grateful to have been given CP status for Module 2. They each have a significant interest in the government’s decision-making in relation to the handling of the pandemic, since they provide frontline services to women and girls experiencing domestic abuse, and they saw the demands for their services increase by significant and staggering amounts in March and April 2020, and continuing to this day.

SBS have a particular remit to provide advice services and support to women and girls from black and ethnic minorities, to migrant women, and women whose status is subject to a no recourse to public funds condition.

We refer to our written submissions which set out the particular issues that the two organisations will be concerned with throughout the Inquiry.

Those issues include the significant increase in domestic abuse during lockdown, the effect on women and girls’ mental health as a result of abuse, isolation and the health risks, the pressure on refuge spaces and on social housing, so that too many women remain trapped in abusive situations, and the particular disproportionate effect that lockdown and the pandemic had on black and ethnic minority women, women with disabilities, migrant women and women who had NRPF status.

As Mr Keith said in his opening statement this morning, a key consideration for this Inquiry should be those who stood to suffer particular disadvantage during the pandemic and whether the impact on them was sufficiently assessed.

Our principal submission is that throughout this Inquiry, scrutiny of all decisions should include scrutiny through an equalities lens, and often the problem with considering decision-making in relation to equalities is not so much what a document contains as what it omits. Ms Twite was kind enough to make the point for me earlier.

We would expect government decisions relating to lockdown, to public health measures and everything else concerning the pandemic to include an assessment of the impact on groups with protected characteristics: women and girls, black and ethnic minorities, sexual orientation, disability and so forth.

Sometimes those assessments can be found on the face of documents in minutes of meetings, but particular problems arise where those documents do not contain specific equality impact assessments, and there has to be careful scrutiny of the extent to which authors, decision-makers and so forth actually did have equalities impact in mind.

My Lady, Mr Keith this morning also quoted to you the full words of section 149(1) of the Equality Act, the public sector equality duty, and we know that you’re familiar with that duty.

With that duty in mind, we support the request from the various families’ campaign and indeed, I think, all the other organisations that have addressed you this morning and now this afternoon, for disclosure of the Rule 9 requests sent to the various government departments.

We understand the pressures on disclosure. We understand that too much disclosure could be as difficult as too little disclosure. But we believe that simply disclosing the Rule 9 requests is a proportionate step to take. We consider – we’ll be corrected if we’re wrong, but we consider that the administrative burden of doing so on the Inquiry team is relatively small. They simply have to copy those documents to us.

We’re not asking for any new documents to be drawn up. But disclosure will assist all the core participants in being able to make submissions to the Inquiry team as to whether additional categories of documents would be relevant. And from the point of view of SBS and SWA, we would want to be scrutinising for equalities impact assessments, for consultation with the Government Equalities Office and any other relevant organisation, and our hope is that, having seen those Rule 9 requests, if they are disclosed to us, that we can provide input, as can other CPs, so as to actually assist the Inquiry team in identifying whether there are further relevant documents which had not been requested and therefore not been disclosed, not least because those documents had not been considered with a view to equalities issues.

Those are our submissions on the disclosure of the Rule 9 requests. We agree with everything that has been said by the other core participants, and I don’t repeat those submissions now.

Moving on, we have made suggestions in our written submissions for other recipients of Rule 9 requests, and we’re grateful for the confirmation this morning that those suggestions will be considered.

On experts, we do support the request to have disclosure of the identity of experts and indeed letters of instructions to experts at an early stage in order that there can be proper dialogue between the CPs and the Inquiry team on those terms of instructions.

We have also suggested that expert evidence is commissioned specifically to advise on the proper approach to equalities assessment in public sector decision-making, what should have happened and what actually did happen, and whether what actually did happen was both lawful and in accordance with good practice. And again, we’re grateful for confirmation that that suggestion of that type of expertise will be considered.

Moving on to evidence and the Listening Exercise, and very grateful indeed for your confirmation just now that of course direct evidence will be heard in the Inquiry and at Module 2 and not just in the Listening Exercise.

We will be suggesting at some point when it comes to consideration of what evidence should be heard, and we accept that today is not the time, but we will be suggesting that non-state CPs be asked to give evidence if they wish, and in particular, whilst we understand that the Inquiry is going to be reluctant to scrutinise too many individual cases, it is our organisation’s view that evidence of case studies taken from their direct advice and support on the ground, from their advice sessions, during the time of the pandemic, would assist the Inquiry in identifying equalities issues, in identifying the significance of the rise in domestic abuse, the communications made to government by my clients and other similar organisations as soon as that rise in domestic abuse was identified, and therefore that that evidence would be relevant to the Inquiry’s ultimate decision as to what government should have done about the rise in domestic abuse along with other equality matters.

Given that participants in the Listening process will not have the benefit of disclosure or consideration of the evidence received at the Inquiry, then we suggest that the CPs who do have that benefit should be able to provide evidence of case studies and exemplars which would supplement those experiences along with the experiences that are going to be summarised for the Inquiry in the Listening process.

Moving on to the Listening process itself, we heard this morning details of those who are to be commissioned to undertake the organisation of the Listening process. We would support the point made by Mr Weatherby that there is considerable expertise outside of the sector that was being referred to, and there is expertise in the voluntary sector and indeed in the academic environment around listening to those who have been bereaved.

The charity Inquest stands out as a notable example, it’s not the only one, but we would ask therefore that consideration is given to voluntary sector or academic sector groups who have experience and can provide advice on how to conduct a listening exercise and listen to those who have been bereaved or suffered significant harm.

Finally, my Lady, we do welcome the Inquiry’s commitment to commemoration, and we also note, outside the terms of this Inquiry, that the government itself is consulting on a permanent commemorative memorial to all those who lost their lives in the pandemic and all those millions of people bereaved, in poor health or suffering other long-term consequences, and we see that as an important step.

Thank you, my Lady.

Lady Hallett: Thank you very much, Ms Davies, and I promise that I will discuss the issues that you and the other core participants have raised with the team and do what I can to make sure that any concerns are allayed. Thank you very much indeed.

Ms Davies: Thank you.

Lady Hallett: Right, and Mr Dayle?

Submissions on Behalf of the Federation of Ethnic Minority Healthcare Organisations by Mr Dayle

Mr Dayle: Thank you, my Lady.

I act on behalf of the Federation of Ethnic Minority Healthcare Organisations, FEHMO, and I am instructed by the firm Saunders Law. My leader is Mr Leslie Thomas KC, who is presently out of the jurisdiction, and who means no discourtesy for not being here today.

Let me start by introducing my client group. FEHMO is a multidisciplinary consortium of over 55,000 individual members and 43 organisations and networks, advocating on behalf of black, Asian, and those minoritised as ethnic workers in the healthcare and social care sectors.

We represent a broad spectrum of workers, including doctors, nurses, care workers and hospital support staff, people who, as it were, worked tirelessly on the front lines, who worked selflessly on a daily basis, putting their lives at risk despite the known and the unknown dangers of the Covid virus.

Many have suffered. Some paid the ultimate price of caring for others with their own lives.

FEHMO was conceived during the Covid pandemic with its initial aim being to bring to light the disproportionate impact of the disease on its members.

In the long term, the consortium seeks to provide a united voice against systemic and underlying health inequalities across all the nations of the UK.

The disproportionate impact of Covid on black and brown people is now an indisputable fact. The contemporaneous reporting told the devastating story. April 23, 2020, the British Medical Journal headline stated “Two thirds of healthcare workers who have died were from ethnic minorities”. May 25, 2020, The Guardian headline similarly stated “Six in ten UK health workers killed by Covid … are BAME”. June 8, 2020, British Vogue asked the obvious question: “Why Are So Many Health Workers from BAME Backgrounds Dying of Covid-19?”

For this Inquiry, my Lady, these early, dire headlines raise serious questions about government decision-making. Why? Despite concerns and known statistics on higher prevalence and severity amongst ethnic minority groups, public health recommendations specifically targeted towards ethnic minority groups at the time were limited. Why? Why was there no proper system of recording infection levels based on race and ethnicity? This was so despite the obvious and rising number of casualties as the disease progressed. Why? When the obvious was becoming clear that black and brown communities were being disproportionately impacted, there was still a lack of timely action to provide better protection.

FEHMO submits that for this Inquiry’s commitment to placing possible inequalities at the forefront to be properly and adequately realised, there must be due consideration of how institutional and structural racism affects health outcomes.

As the Macpherson Inquiry into the death of Stephen Lawrence found at paragraph 6.3 of that report, which no doubt my Lady is very familiar with:

“… the concept of institutional racism which we apply consists of …”

And it goes on to say:

“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin.”

And it goes on further:

“It persists because of the failure of the organisation openly and adequately to recognise and address its existence and causes by policy, example and leadership.”

Structural racism as been defined in the Du Bois Review, an academic journal, as the:

“… macro-level systems, social forces, institutions, ideologies, and processes that interact with one another to generate and reinforce inequities among racial and ethnic groups.”

For example, historical experiences of minority ethnic groups and long term discrimination may lead to a higher proportion working in lower paid jobs on insecure contracts without sickness benefits and in public-facing occupations, living in crowded housing conditions, and having fewer resources for health.

FEHMO members have had to conduct their professional duties whilst suffering with higher levels of infection, mortality, bereavement, physical and mental burn-out, and sadly nowadays the spectre of long Covid.

They seek answers on the government’s apparent failure to: one, provide appropriate PPE to health and social care workers in a timely manner; two, keep proper epidemiological data and map progression within BAME communities; and three, put in place proper public health measures to protect BAME health and social care workers.

In the terms of reference, one need not remind you, my Lady, that this Inquiry has committed itself to consider any disparities evident in the impacts of the pandemic on different categories of people.

FEHMO believes it bears saying at this point that this Inquiry must investigate whether government had any regard to the public sector equality duty throughout its decision-making. Was this duty ignored during the pandemic, or was there a suspension of these obligations within the respective decision-making apparatus?

My Lady, we have no illusions about the enormity of the disclosure exercise that is required for this module. It is for that reason that, on the matter of scope, we join the call inviting the Inquiry to provide a list of issues at an early stage with the opportunity for CPs to comment on them, and I believe those arguments have been canvassed by my colleagues previously.

We acknowledge Mr Keith’s promise to reflect on this issue in his earlier remarks this morning. We also seek to join the call of those inviting you to direct that Rule 9 requests are shared with CPs in the interest of transparency.

Notwithstanding Mr Keith’s nuanced discussion on this point this morning, we believe that the opportunity to comment on Rule 9 requests would assist your investigation by addressing gaps that have not been covered in the Inquiry’s own requests.

On the subject of expert witnesses, we welcome Mr Keith’s promise in his written statement for the Inquiry to “consider suggestions from [core participants] as to who should be appointed” as experts. As we noted in our written submissions, FEHMO considers it vital that the Inquiry has the benefit of expertise on matters of health inequality, race and ethnicity, and intends to make further representations in this regard.

We also endeavour to make sure or we will also endeavour to make sure that generally on the matter of choice of experts across all disciplines, the Inquiry works along with experts who have previously in their work engaged with these issues.

Finally on the matter of the Listening Exercise, my Lady, FEHMO has considered the arguments advanced by the Covid-19 Bereaved Families for Justice, and the position set out by the Inquiry. Without rehearsing the finer points of this debate, we want to say that we are somewhat sympathetic to the arguments that have been advanced by CBFFJ and Mr Weatherby this morning, and indeed Ms Davies.

The process of obtaining stories for a report to be produced by a party outside of the Inquiry, we submit, seems too far removed and beyond the juridical process of this Inquiry.

On the matter of pen portraits, we appreciate Mr Keith’s comments on the work being undertaken to commemorate the experiences and losses of victims of Covid-19 from within the Inquiry, and we look forward to updates as this work progresses.

Those, my Lady, would be our opening remarks at this time.

Lady Hallett: Thank you very much indeed, Mr Dayle, very helpful.

Just on that last point about the Listening Exercise, my intention at present, and obviously I am keeping every issue under review, is to make sure that individual experiences are fed into the Inquiry in two way: one as direct evidence in the Inquiry hearings where they relate to possible systemic failings and are therefore plainly relevant to that particular module, but secondly, also, that the Listening Exercise is not intended to be just, you know, an add-on. The reports from the Listening Exercise of people’s experiences will be fed into the Inquiry as evidence. So it’s not removed from the juridical process – sorry, I can never say that word – as you were perhaps suggesting. It is intended to be very much part of the process.

Mr Dayle: Very well.

Lady Hallett: So thank you very much for your very helpful submissions.

Mr Dayle: Thank you.

Lady Hallett: Right, Ms Gallagher.

Ms Gallagher, I’m just pausing for a second because I interrupted you last time. I have been asked to break every hour and a quarter. We started at 1.45 to 2, so I think you should be all right.

Submissions on Behalf of the Trades Union Congress by Ms Gallagher

Ms Gallagher: Thank you.

My Lady, as you know, I represent the Trades Union Congress, the TUC, along with my colleague Mr Jacobs, from whom you will be hearing later in the week, instructed by Thompsons, and the TUC is grateful to be designated as a core participant in Module 2, also in Modules 2A, 2B and 2C concerning Scotland, Wales and Northern Ireland in particular. And as of course you’re aware, my Lady, we are also a core participant in Module 1 on pandemic preparedness, and so you have been introduced to the TUC at a prior hearing, at your first hearing.

Given the different attendance here today along with Mr Weatherby, I also intend just to very briefly introduce my client’s role and interest.

The TUC brings together 5.5 million working people who make up its 48 member unions from all corners of the UK. And 5.5 million working people is, of course, a huge number. By way of context, this is a number greater than the entire population of the Republic of Ireland, it’s roughly approximate to the entire population of Scotland.

In an annex to our written submissions, we have set out the 48 member unions of the TUC and you will be aware, my Lady, that this list spans a very wide range of industries profoundly affected by the Covid-19 pandemic, including many frontline roles and many workers at what Mr Keith described this morning as the coalface in his submissions: those in hospitals, including hospital doctors, midwives, radiographers and others, those working in care homes, those working in shops, warehouses and factories, drivers and other staff on buses and trains. And in many ways the pandemic showed on whose shoulders society is built, the true value of labour, who carries us as a society at moments of crisis.

At the outset, on behalf of the TUC, I want to make three points about workers and workplaces which we say must be borne in mind throughout the examination of the UK’s core political and administrative decision-making in this module, in Module 2.

First, in addition to the coalface as mentioned this morning, we must remember – and I know you and your team will have this in mind – that there are other coalfaces which don’t necessarily share the same profile or have the same public awareness as hospitals, care homes, buses and trains. And by way of indicative examples only, may I give you two: first, food processing. Essential so that we could all continue to eat during this period. There were several mass outbreaks associated with food processing plants, including at an early stage: March 2020, for example, many of you will recall the mass walkout of over 1,000 workers in Moy Park at Seagoe, Portadown, due to safety concerns; Bakkavor factory in Kent, two died, 100 tested positive following an early outbreak; and in August 2020, at Banham Poultry factory in Norfolk, responsible for a huge 7% of chicken processing in the UK, it had to be shut down after a serious mass outbreak, 75 initially testing positive, rising to 127, and devastating outcome.

Second example of a coalface which isn’t necessarily in the public consciousness as much as others is workers in supply chains, including delivery, logistics and communications workers.

Of course, one of the consolations of lockdown for many of us was that we could order goods online and they would appear at our front doors as if by magic. But behind that magic were people: postal and delivery drivers who continued to work, to be travelling around at great risk; logistics staff; call centre workers; HGV drivers sleeping in their cabs on laybys.

Now, some supply chains and the people behind them began to seep into public consciousness as soon as there was a direct impact. We saw the headlines when Nando’s ran out of chicken, when Ikea ran out of mattresses, when Wetherspoons ran out of beer, and suddenly supply chains were acknowledged as mattering. But a key question will be: was there timely and adequate recognition that the people who keep essential supplies moving should matter too?

That’s the first point we want to make as an underlying point in relation to this module.

The second is that many of those working in essential coalface roles are in low paid jobs, often paid minimum wage, and some indeed paid, as you will hear, below minimum wage. So many of those at the coalface in shops, in care homes, in supply chains, were in jobs which exposed them to particularly high risk of contracting Covid but they were also paid very poorly.

High risk, low wage jobs. And that meant limited choices. In many cases, my Lady, it meant deaths from Covid, having contracted it in their workplaces. Tens of thousands of people of working age died in the pandemic, and a great many of them were workers in those high risk workplaces, sectors such as health, social care, transport, food processing, textiles.

The third key factor is that amongst the working population the impact of Covid, as you have heard from others this morning and indeed from Mr Keith in his opening remarks, hit particular communities and groups harder than others. And as we said in Module 1, my Lady, workers from ethnic minorities were particularly hard hit: BME men 57% more likely to be working in jobs with a higher mortality rate; BME women 48% more likely. And you have heard, in powerful words from Mr Dayle just now, on behalf of the Federation of Ethnic Minority Healthcare Organisations, particular disparities in that sector.

Migrant workers were also particularly adversely impacted. For example, I mentioned Banham Poultry factory: the majority of workers there were migrant workers, many from Eastern Europe. And that, of course, links to the point about low wages. Many lived with co-workers at houses with multiple occupancy, travelled together.

This all goes to underpinning the point Mr Keith acknowledged this morning in his opening remarks, that hardship and suffering were not equally spread. And we agree, or as the TUC General Secretary Frances O’Grady put it in her speech to Congress in September 2020: coronavirus is no leveler; on the contrary, it has exposed huge inequality in modern Britain.

For the TUC, they hope that this Inquiry, my Lady, will deliver, if I can put it this way, on three As: answers about what went wrong, and of course, as Mr Keith indicated this morning, what went right, when it went right. Accountability, a form of public accountability, where justified, for decision-makers who made plainly wrongful decisions and significant errors of judgement. Again to quote from this morning. And vitally, action, recommendations to secure real change with recommendations being made during the lifetime of the Inquiry in interim reports where possible and with ongoing monitoring by your team. We were very encouraged to see that at the heart of your opening July statement, my Lady.

Against that general backdrop, we wish to address you on four points orally today, and we’re grateful to your team for the detailed written note and the further indications this morning, as a result of which some matters have fallen away.

The four points I’ll address you on are: one, the focus of Module 2 and the role of core participants; second, some additional specific points about Module 2 and scope, I’ll call them the micro points; third, some higher level points about Module 2 and scope, I’ll call those the macro points, primarily about Northern Ireland and England and how they fit in; and then, fourth, a specific request for a closing hearing in early 2024 in Module 2 when you have completed Modules 2A, 2B and 2C. So we gather again, is our proposal, at the end to look back on what we’ve learnt from each of those other modules.

So number one, the focus of Module 2 and the role of core participants. My Lady, the TUC agrees that, as you indicated in your opening statement in July, the Inquiry’s overall terms of reference are wide-ranging and demanding, and we recognise that and we say it at the outset it would of course be impossible to call every witness relating to every single event, issue or decision, and that you must focus on the key issues.

We agree that this requires the Inquiry to be, as Mr Keith indicated this morning, ruthless in the selection of issues and relentless in its focus on matters of real importance.

I mentioned the TUC’s three As. We’re also committed to Mr Keith’s two Rs: being ruthless and relentless, continuing the alphabet theme.

But for Module 2, my Lady, given the plethora of decisions on a wide range of issues which necessarily were taken at national – by which I mean both UK and then national within each of the nation states – regional and local level over a two-year period, we recognise you cannot examine each and every one of those decisions, and the focus needs to be upon what you described in your opening statement as “the key issues”, or what Mr Keith described this morning as matters of real importance or the “key narrative events”.

We do also recognise that scope as currently defined is a generic wide guide without necessarily delving into specific detail at this stage.

Now, where there is a difficulty is this: Counsel to the Inquiry this morning say that the detail will follow and what will inform it will be the evidence gathered under the Rule 9 process. What we heard this morning in effect was: the evidence gathered under the Rule 9 process will in effect determine the issues.

But there is a circularity to this, because the Rule 9 evidence obtained will necessarily be affected by the terms of the request from your team. Indeed, for a statement under Rule 9.4, it requires in terms that any request for an written statement must include a description of the matters or issues to be covered in the statement. So the Rule 9 evidence which will come later, which is said to be determinative of the detail of the scope, will itself necessarily be limited, focused or targeted, if you will, by the terms of the Rule 9 requests, and that means that the outline of what are, using your phrase from July, the key issues or, using Mr Keith’s phrase this morning, matters of real importance or the key narrative events, those phrases become hugely important, because what will come back to you will be coloured by what your team set out in the requests as being the key issues, the matters of real importance or the key narrative events.

Regrettably, because the core participants are not seeing those requests, we don’t know the list of key issues, we don’t know the matters of real importance, or precisely what the key narrative events are seen to be by your team, we’re in difficulty. And, as we understand it from this morning, by the time we’re now going to see those, the key issues, the matters of real importance, it will in effect be a done deal, a fait accompli, with very limited time left until the summer 2023 hearing.

Now, Mr Keith asked again this morning: to what end would there be earlier disclosure to core participants? Essentially we will see it when we see it, was the approach taken, when the product of the requests is returned and disclosed. He said, and I hope my note is accurate:

“The answer is plain: we [by which he meant the Inquiry team] … decide what the key narrative events and decisions are …”

My Lady, he says the answer is plain. We say the concern is plain. It’s been shared in different forms by the vast majority of core participants who filed written submissions or made oral submissions to you today. We’re not attempting to be difficult. We simply don’t want to be in a position where we hit March 2023, within weeks of this eight-week hearing being due to start in summer 2023, and we say there’s a problem or there’s a gap.

And really here we think the fault line and the difference between us and your team is about what the true role of core participants is in this process. Now, we’re conscious that a core participant is not defined as such in the Inquiries Act 2005 or in the 2006 Rules, save the rather circular definition provided in Rule 2:

“[A] ‘core participant’ means a person designated as such under rule 5.”

And in the Core Participant Protocol which you have produced, it’s defined by reference to its entitlements under the rules. But broadly speaking, in our submission, a core participant is understood to be an entity which plays a key role in the Inquiry, and our position, and we understand this to be shared by other core participants who have made submissions today about early disclosure, is that core participants should play that role from the outset at an early stage, and the impression that we have from what’s been said today is that the Inquiry team does not envisage core participants playing a key role in the evidence gathering process at this stage; instead we’re to wait until we see what comes out of the sausage machine at the other end.

Now, we are not intending to usurp the Inquiry team’s inquisitorial role. We recognise it’s their role to gather the evidence. We say the core participants, of whom you’ve got 39, with a very broad breadth of expertise and knowledge, here, we all by definition have played a key role in the decision-making under scrutiny in this module, or we have a significant interest in it. Our submission is it’s in your interests and your team’s interests to hear from us earlier rather than later.

Now, there’s many ways to skin this particular cat, whether it’s through early provision of a list of issues, as advanced by Ms Sivakumaran and Mr Dayle, whether it’s disclosure of the Rule 9 requests in this module – we appreciate the ruling in Module 1 but we agree with Mr Weatherby that this is different because of the targeted approach being adopted rather than relevance alone – or another mechanism.

What we have said with one voice today in our written and oral submissions is: engage with us earlier, give us the information earlier, and that will help to make your process as robust as possible and avoid difficulties in 2023.

May we give you one specific example about the Inquiry’s focus of which we learned this morning and about which the TUC has concerns, having discussed it over lunchtime.

Mr Keith said, and I hope I’m quoting accurately:

“In the context of this module, Module 2, the focus is on whether the government had sufficient regard to the likely impact of the pandemic and its decision-making, not on what the impact of its decision-making turned out to be.”

From the TUC’s perspective, if we have understood that quote correctly, we consider this to be a false dichotomy, because this is not about a single snapshot of decision-making at one time; it’s about decision-making over a two-year or 25-month period from early January 2020 to February 2022. And in our submission, the impact of that decision-making, on an ongoing basis, is indeed a key part of analysing the adequacy of ongoing decision-making by central government.

I’ll just give you two indicative examples to illustrate the point, one is London bus drivers, one is inspection of workplaces.

So London bus drivers. The epidemic in London began at least an estimated 15 days before the rest of the country. That meant that its lockdown occurred at a later stage of its pandemic and, as we anticipate evidence will show during this Inquiry, there’s a stark difference in mortality during the first wave between London compared to the national average.

But this also gave rise to some learning opportunities which could and should have been learned from and rolled out in other parts of England, in Scotland, Northern Ireland and Wales. And that’s why we give this specific example.

A very early pattern emerged of deaths in the London bus driver population. Death rates from Covid amongst bus drivers in London exceeded death rates for London as a whole throughout March, April, early May 2020. Across England, bus and coach drivers at an early stage were identified as amongst the occupations that ONS reported as having elevated mortality from Covid-19. And indeed, ONS published occupational mortality from all causes and deaths involving Covid-19 between March and May 2020 and that indicated that the all-cause death rate for bus and coach drivers was greater than that for all other occupations, and almost double what would have been expected from the mortality of bus and coach drivers in the previous five years.

Now, a swift understanding of the reasons behind those statistics was critical. Was the key factor increased levels of exposure to the public? What about additional risks for bus drivers in London, including age or race? Early evidence tended to suggest that amongst bus drivers those aged 65 and over, and those from BAME backgrounds, and those with certain pre-existing conditions were at higher risk from Covid-19 mortality. And similarly Mr Dayle, in his submissions just now, referred to the emerging picture about the particular adverse impact upon healthcare workers in black and brown communities.

And of course, when you’re looking at central government’s decision-making, factors such as these and the impact of decision-making or lack of decision-making at an early stage is likely, of course, to be relevant to the adequacy of your ongoing decision-making.

The other example the TUC gives is the inspection of workplaces. And my Lady, we gave you some information in previous submissions about the HSE, the Health and Safety Executive, and just in summary, by early June 2020 the HSE had received over 6,000 additional concerns from workers about social distancing and other pandemic-related matters, and the impression of the unions at that time was that the HSE response fell woefully short. And that’s supported by the HSE’s own reporting of its response.

At that early stage of over 6,000 concerns, only 2,684 were even passed to HSE field teams for follow-up. Of those, 1,331 were considered to require no further action. And most starkly, of over 6,000 concerns, only 47 concerns were responded to with a physical inspection, and only one prohibition notice was served.

That’s striking, we say, six months into a pandemic which had terrible consequences in so many workplaces, that HSE had conducted only 47 site visits and issued only one prohibition notice. We, on behalf of the TUC, say that that was wholly inadequate, and it was heavily criticised by the Commons select committee on work and pensions.

Now, when you’re considering the adequacy of central government’s decision-making to ensure safety in workplaces, what in fact was happening on the ground with the HSE is central. So the impact is central. And this goes back to looking at your opening statement in July and the reference to impact and systems, there is of course an interaction between impact and systems.

The well known quote, my Lady, about the definition of insanity is doing the same thing over and over again and expecting a different result, which is sometimes wrongly suggested to be from Einstein, but that quote is relevant here. Because if you have, on an ongoing basis over this two-year period, decision-making by central government which fails to look at impact, in our view, that will, in itself, indicate an inadequacy in that decision-making.

We also suggest this is in fact reflected in the scope document itself. When considering issue 3 on non-pharmaceutical interventions, NPIs, it says:

“… the development of the approach to NPIs in light of the understanding of their impact on transmission …”

Which suggests that ongoing decision-making rightly should have an eye on impact.

A second category, my Lady, is a number of additional specific points about Module 2 and scope. These are micro points, if I can put it that way.

Mindful of the time, may I indicate that we deal with these in detail in paragraph 33 of our written submissions, so just in headline terms, my Lady, the TUC has indicated to you and your team that it has a particular interest and expertise in three issues in the provisional scope document. Issue 2, as it relates to guidance and advice given to health and social care providers. Issue 3, on NPIs. Issue 5, on public health communications.

At paragraph 33 of our written submissions we have set out four points. And to be clear, we don’t suggest these points require an editing to the wording of the scope document, we agree with the point made by Mr Keith about the scope document on many issues being sufficiently broad to allow these things to come under its particular umbrella without editing the wording.

The reason we raise them now is that we submit that it’s vital that they’re considered, they appear to fall within scope of Module 2, but there is a lack of clarity as to whether or not they will be delved into in Module 2 or touched on in Module 2 and delved into at a later stage in another module in greater detail.

So the four points are: first, the education sector, which we say is of significant relevance to the examination of decision-making around NPIs, non-pharmaceutical interventions. And that’s both because education was significantly affected by NPIs but also because education settings could be vectors for community transmission.

So when considering your issue 3 in the scope document, this must inevitably include consideration of educational settings, we say, and there is some clarity needed about the extent to which you will do that in Module 2 or whether it will be something that is returned to in a later, as yet undefined, further module.

Second is the use and effectiveness of NPIs in workplaces across the UK. And as I have indicated in my opening remarks, community transmission and significant loss of life occurred in particular sectors, including the transport sector, communications sector, the manufacturing sector, food processing, textiles industry, construction sector, the retail sector.

Now, all of those sectors saw significant loss of life and outbreaks of the virus, and all were reliant to varying degrees on NPIs such as social distancing and the use of masks. And in examining the development of the approach to NPIs, in light of the understanding of their impact on transmission, it would be important to understand the effectiveness of NPIs in these sectors and how they were being applied in practice.

We also say that an understanding of these issues is relevant to examining the assessment of the likely impact of the contemplated NPIs on vulnerable groups in light of existing inequalities. And again, we’re unclear about the extent to which would be delved into in Module 2 or looked at later.

The third example is in relation to public health communications, and a significant feature of the use of NPIs was the lack, we submit, of clear communications and guidance for workplaces. The Inquiry will need to consider what guidance was given in respect of NPIs and workplaces, and you have seen in our written submissions that the TUC say in the experience of the TUC unions, the messaging and guidance was frequently confused, often contradictory, and placed workers at risk, with the unions trying to fill the gap.

It was limited. Different industries were served to different degrees by a patchwork of professional bodies seeking to adapt national public health communications and guidance to their particular workplace and to fill in these gaps. That’s why we have given you specific indicative of examples of that confusion and the contradiction in our written submissions referring to the communications sector, construction sector and the transport sector.

Then the fourth point under this heading is: both in submissions on the terms of reference and for Module 1, my Lady, the TUC has emphasised the importance of the Inquiry examining the mechanisms in place for ensuring safety in workplaces and how in practice NPIs were implemented and enforced. And again we say that requires an examination of the role of the Health and Safety Executive, other regulators such as the ORR, and also local authorities. That will be critical.

Third point, the macro points, my Lady, about the scope of Module 2 and its interaction with Modules 2A to 2C. There’s two separate points. One relates to Northern Ireland, one relates to England. I’m grateful for the indication Mr Lavery gave in his oral submissions that he had had a reassurance from CTI about the Northern Ireland issue being addressed. We have dealt with that in some detail at paragraphs 20 to 24 of our written submissions, my Lady, starting at page 6.

And in short, the issue is that we are unclear at this stage how the particular position of Northern Ireland’s pandemic preparedness in the period leading up to January 2020, and Northern Ireland’s unique position in early 2020 will be addressed, and how it will fit between Module 1, Module 2 and Module 2C. As we indicated in our written submissions, and Mr Lavery echoed this earlier, Northern Ireland had no functioning executive for a three-year period from 2017 until 9 January 2020. You will recall that in January 2017 the then deputy first minister Martin McGuinness resigned, the Northern Ireland Executive collapsed, and in essence you had a three-year period where Northern Ireland was governed by civil servants in a caretaker capacity. And it also meant that the UK Government in Westminster had particular additional obligations as there was no functioning Executive.

Now, that played out in certain ways in particular other areas. So, for example, you will recall the fact that there was a particular legal challenge against the Secretary of State for Northern Ireland within Westminster for failing to take action in relation to abortion and ECHR rights of women and girls in Northern Ireland. But it’s relevant here because you have a situation where there was a hiatus period for three years. When looking at pandemic preparedness in Module 1 this will be very relevant when it comes to Northern Ireland. It also means that you had a brand new government after three years of a hiatus in early January, just as the pandemic was starting to hit. And we are unclear, when looking at Module 2 and Module 2C, as to how that’s going to be dealt with, or indeed how it will be dealt with in Module 1.

We are quite happy to discuss that further with your team, if helpful. Bottom line is, as we’ve said in our submissions, this is an elephant in the room. It doesn’t appear in any of the scope documents currently. It’s of sufficient significance and importance that it must be reflected and we must be clear on when it’s going to be dealt with. If it’s going to be dealt with, for example, in early 2024 in Module 2C, we can see that that’s pragmatic and sensible, given that an eight-week hearing in summer 2023 is bearing down upon us relatively quickly. But if that’s the case, Module 2C will have to look at centralised UK decision-making in respect of Northern Ireland as well as looking at decision-making in Northern Ireland itself, because of the particular role of the Secretary of State for Northern Ireland in Westminster.

The other issue is England, and we have dealt with that in our written submissions at paragraphs 25 to 27. Now, Module 2 in the provisional outline of scope document is described in a way which is plainly UK-wide, and it seems clear to us that Module 2 is focused upon UK-wide decision-making, with Modules 2A, B and C intended to address, in turn, Scotland, Wales, Northern Ireland. And we are unclear from the current wording how England-specific issues are to be addressed. And perhaps an unusual submission for an Irish counsel to make, but there is a worry that England will be overlooked in this context.

Lady Hallett: Very unusual.

Ms Gallagher: Precisely. Unusual for someone with my name and my number of consonants and vowels to be making this submission. But we are concerned that 2 looks at UK-wide. And we’re conscious that there is a reference, of course, to communications with both devolved administrations and regional and local authorities in issue 1, as currently phrased. So we’re conscious that there will be some looking at how UK-wide decision-making was then communicated to others, but what we don’t have is an equivalent of what you get in 2A, 2B and 2C about England specifically. And our proposal for that is: we recognise we are not going to have a whole new England-specific module, and that’s why pragmatically what we have suggested is that you do alter the wording, so there is a new 1A, which is England-specific, and we recognise that in the eight-week hearing we are going to have to look at England particularly.

And you will recall that in Module 1 we raised specific concerns about the north of England and London-centric decision-making, and that is an issue which we say does have to be addressed in Module 2.

Final point, my Lady, is about closing submissions in 2024, and in our written submissions, my Lady, at paragraph 9 onwards we dealt with the Inquiry’s modular approach. And this arose, if you recall, in the Module 1 hearing, when a number of other core participants were saying: well, why can’t we see the provisional scope documents in advance? And the position adopted in the ruling and at the hearing was: you’ve no entitlement to see them unless and until you’re a core participant.

So we recognise that there is a value to a modular approach in an Inquiry such as this. And indeed, many core participants who achieve core participant status in one particular module might struggle if they needed to be a core participant across the Inquiry as a whole. So it has great value.

It also has great value, we recognise, in allowing your team pragmatically to be broken down and to have different people working at the same time on different strands. So bearing in mind the importance of timeliness and speedy recommendations outlined in your July opening statement, we can entirely see the value.

There are some disadvantages to it, however, and that’s why we have made the pragmatic suggestions that we have at paragraph 9 onwards. One of the real risks, of course, is a risk of a silo mentality. And one of the other real risks is that core participants won’t be able to ultimately have a real impact on your final report. And an example of that, my Lady, which we give in our written submissions, is that there were no overarching final submissions in the Independent Inquiry into Child Sexual Abuse. And as a result, when the final report comes out, it’s impacted by, of course, submissions which are made in individual modules by individual core participants, but the only people who have actually impacted upon the ultimate decision-maker, in this case you, my Lady, are your own team.

We submit that that’s not the right approach. And that’s why we support, as in Grenfell, overarching submissions being made at the very end of the process, so that looking back, standing back, including looking at how interim recommendations have been impacted, and affected, core participants should be entitled in some form to make submissions to you on overarching underpinning points, rather than sticking to their lane and only dealing with the particular issues in the particular module that they’re in.

Now, in relation to Module 2, there’s a very specific proposal. Module 2 is constructed in a way which allows you to look first, in this eight weeks in summer 2023, at UK-wide decision-making. Then, as we understand the timetable, in autumn 2023 there will be hearings about Scotland and Wales. And then in early 2024, there will be a specific hearing about Northern Ireland. It stands to reason, my Lady, that during those hearings specific to Scotland, Wales and Northern Ireland, it may illuminate certain issues, it may highlight other gaps in decision-making at a UK-wide level which we simply didn’t deal with in summer 2023 because we didn’t know about it.

So our proposal is that the core participants in the summer of 2023 Module 2 hearing should be entitled, in the usual way, to make closing submissions at the end of that eight-week hearing, but we also ask that you take the unusual step of listing a short hearing, we suggest two days, in early 2024, when you’ve finished Module 2, Module 2A, 2B and 2C, so that we can come back here again and we can make submissions on underlying issues arising from Module 2.

Now, it may well also be, of course, that you may need to have further evidence in relation to Module 2 arising from what’s emerged in Modules 2A, 2B and 2C. We simply don’t know that yet. What we do know is that there will be further submissions to be made that we simply will not be able to make in July 2023 because we won’t know the issues. And we suggest that it would be sensible to list a short hearing as a strand-tying hearing so that you can look at Module 2 as a whole with the benefit of the evidence that’s emerged in Modules 2A, 2B and 2C.

And, in our submission, that’s an obvious approach which will help when we go back to the TUC’s three As. So when you’re trying to get answers to what happened, and when you’re looking for accountability and actions, you are likely to get more informed and detailed submissions in early 2024 with the benefit of those other modules having already taken place than you will ever get in summer 2023. So it’s a proposal for an additional hearing but, we suggest, a modest one and a pragmatic one which ultimately will make your process more robust.

Unless I can assist further, I think I have done it within time for the stenographers.

Lady Hallett: Thank you very much, Ms Gallagher. Your submissions were as constructive as ever, thank you very much, and I will consider very carefully. A lot of what you said obviously we all agree with. The modular system has its downsides but, when you have an Inquiry of this complexity, it seemed to me, on advice, that it was the best way to deal with it, but as soon as I can get more detail out, as I’ve said to people, about what these modules will do and what later modules will do, I promise you core participants will be the first to know as soon as I’ve made my decisions.

Thank you very much, and I have taken on board all the submissions that you made. Thank you.

Ms Gallagher: Thank you.

Lady Hallett: Right, the stenographer’s had a really rough time. I think we’ve only got a couple of minutes of Mr Hill, and how long for Mr Keith? I’m going to give the stenographer the choice. I think Ms Gallagher speaks even more quickly than I do.

We’ll take a break. Right. 15 minutes, then everyone can sort themselves out. So I shall return at 3.20.

(3.05 pm)

(A short break)

(3.20 pm)

Submissions on Behalf of the Government Office for Science by Mr Hill

Lady Hallett: Mr Hill, I gather you’d like to say a few words.

Mr Hill: Thank you, my Lady. I represent the Government Office for Science, which is headed by the Government’s Chief Scientific Adviser. Among other things, the Government Office for Science provided secretariat support for SAGE. Very short submissions for your Ladyship, and we’re grateful for the opportunity to make them.

They are prompted by Mr Weatherby’s observation that it is helpful to identify where there is agreement between core participants at either end of a telescope, to borrow his metaphor. From the Government Office for Science’s perspective, one such area is the early involvement of core participants in discussions on expert evidence.

We recognise that it is unequivocally for your Ladyship to decide which areas are suitable for expert evidence and who is instructed to cover those areas. But we would welcome an early opportunity to contribute to the discussion that informs your Ladyship’s decisions. There are two reasons for this.

The first and most important is that we believe that we can help. The Government Office for Science has extensive knowledge of relevant areas of suitably qualified experts and of a wider academic landscape.

The second reason is that it will help further build confidence in the work of the Inquiry among all who participate in it.

Counsel to the Inquiry has said that the identification of experts has not been straightforward, for reasons that we can well understand, and he has also said that core participants will be provided with further information about expert evidence in due course. Our submission is that the sooner that is done, the greater the benefit will be for the Inquiry, both in terms of the practical help to be given and in terms of public confidence. And that is so, we say, particularly because of the demanding timetable that your Ladyship has placed on the Inquiry.

Unless I can assist further, those are the submissions I have.

Lady Hallett: No, thank you very much, Mr Hill, and thank you for the offer of assistance, and I will consider very carefully – as you say, a number of core participants have made a similar point, and so I will give it very careful consideration. Thank you.

Mr Hill: I’m grateful to you, my Lady.

Lady Hallett: Mr Keith.

Response Statement by Lead Counsel to the Inquiry

Mr Keith: My Lady, there is much to reflect upon. We, but much more importantly you, will reflect on the points that have been made in the course of the proceedings today, but may I nevertheless seek to answer just some of the points which can be answered, we believe, straightaway.

Whilst Ms Gallagher’s exhortations continue to ring in our ears, can I start with some of the points that she made, perhaps what may be described as the systemic points going to the broad nature and width of this Inquiry.

In relation to her submissions concerning Module 2C, and of course the crucial issue concerning the absence of a Northern Ireland Executive from early 2017 to 11 January 2020, notwithstanding the point made that there is a distinct absence of any reference to that important matter in the provisional outline of scoping documents, it is in fact a matter which is expressly identified in paragraph 3 of the provisional outline of scope for Module 2C. And that’s something upon which you will be hearing further submissions, no doubt, from Ms Dobbin on Wednesday.

In relation to the notion of an English-specific module, the very short answer is that the provisional outline of scope for Module 2 identifies that the central government structures and bodies concerned with the UK response to the pandemic will form a key part of Module 2. The reference to the United Kingdom in that context necessarily includes England because, as we all know, England forms no separate entity in a federal model in the United Kingdom and, insofar as it is within the United Kingdom, it naturally forms part of any consideration of United Kingdom issues.

The reason, of course, why there is nevertheless a separate Module 2A, 2B and 2C is because, alongside the UK decision-making, there was also relevant decision-making in relation to Scotland, Wales and Northern Ireland.

The last point that I would like to address in relation to Ms Gallagher’s submissions concerned the pleasure of having the advocates come to a further module hearing in 2024. The Inquiry team couldn’t possibly begin to make submissions in relation to the desirability or benefit of that course being adopted at this very early stage indeed.

Returning then to the beginning of the submissions this morning and the points made by the advocates for the core participants earlier in this process.

In relation to Mr Weatherby’s submissions concerning the disclosure process and the Rule 9 process, it was suggested that the Cabinet Office would not be required to provide all relevant documents. That is how Mr Weatherby put the iniquity, as he saw it, of the process we have adopted. So I must correct I’m sure what is an inadvertent but nevertheless misapprehension.

What we have sought to do is, rather than tie the disclosure obligation to the very broad, high level, necessarily opaque outline of scope, which is a document which was prepared to enable the core participants prospectively to decide whether or not they wished to apply to become core participants, we are seeking to tie the disclosure obligation to a more targeted, more focused understanding of what it is you are seeking to investigate in the course of Module 2.

So we are expressly asking that the government document providers provide material relevant to the key decisions, the people, the events, the matters that are really important.

So targeting the disclosure process in that way and the Rule 9 process in that way is not a derogation from the Inquiry’s obligation to obtain potentially relevant documents for subsequent disclosure; it is designed to make the process work more smoothly, more sensibly, and to ensure that the right documents are obtained.

As I said earlier, too much disclosure is as unhelpful as too little disclosure, and you may conclude, my Lady, that ultimately this debate comes down not to an analysis of whether or not there is some forensic unfairness in the process that you have adopted, but is actually one of engagement.

Because you may well conclude that the core participants feel that unless there is some means by which we can tell them what it is that we’re asking for over and above the disclosure of the provisional outline of scope, that they may feel that they have been denied a sufficient and proper opportunity to engage in that process.

But I can assure them – and as you in fact stated in your ruling in Module 1 – they will be provided with a monthly update of where we’ve got to in terms of the Rule 9 process and disclosure, and that will obviously reflect quite a lot more about the way in which we have been asking for documents and what we have been given. And, of course, as the documents are provided, they will necessarily be able to see what issues those documents go to, so they will immediately be able to assess which of the issues in the provisional outline of scope document those documents concern.

We would also wish to make the point that you may consider in due course that the time will come when there will have to be disclosure of a more granular or detailed list of issues because, as we get nearer to the point in the process where we start to make decisions about the likely witnesses, and what precisely the public hearing will look at, the CPs will need to have at that stage a better understanding of frankly what questions will be the areas which will be posed of the witnesses. So they will be bound to get at that stage a more detailed understanding, as I say, of the list of issues.

Lady Hallett: So the question the core participants, I think, are raising is this, isn’t it: will there be sufficient detail in the monthly updates pending what you say will be a more detailed list of issues to come later?

Mr Keith: We believe so, my Lady. But, in any event, as a matter of principle – and I’ll come back to this in a moment in the course of addressing one of the other submissions – the iniquity of providing the Rule 9 requests is this: it was suggested that of course the core participants would be grateful by sight of the Rule 9 requests, but there was no mention of what will surely follow, which is that each of the core participants would then seek to invite the Inquiry to recalibrate, reformulate, reiterate perhaps, the Rule 9s which have already been sent out. And when one considers of course the number of recipients who have received a Rule 9 request, that will require a hugely significant administrative process, because the Inquiry team will receive a myriad number of requests in writing for the Rule 9 process to be recalibrated; and, when we are dealing with the receipt of tens of thousands of documents along with all the other matters which will need to be addressed, that is an impossible burden.

Lady Hallett: So you say the burden is coming not in posting or emailing the Rule 9 requests themselves, it’s in responding to what the core participants say?

Mr Keith: Because they will surely –

Lady Hallett: Analysing and responding to.

Mr Keith: Absolutely, and it’s perfectly understandable. There will be no benefit to be gained in seeing what the Rule 9 requests consisted of unless they return to the fray by engaging in the minutiae of those requests and then seeking to persuade us to make further or different requests.

The further submission was made on behalf of the Covid-19 Bereaved Families for Justice Group by Mr Weatherby to the effect that the group would be significantly denied a proper involvement in the Inquiry’s process unless it was provided with further detail of the Rule 9s or of undisclosed documents.

But, as I’ve sought to suggest, firstly they will receive those monthly updates; secondly, in due course there will be a far better understanding of the issues, necessarily; and, thirdly, when one stands back from this process, at the heart of it will be the disclosure of the actual material itself, the stuff of the forensic heart of this Inquiry. And it is when they receive all those documents, which will necessarily go far wider than any attempt to describe in writing what the broad issues consist of, they will see immediately what evidential points can be made, what the forensic links are, and where the Inquiry is headed.

So it is, in my respectful submission, simply not correct to suggest that the core participants are being denied in any material way a proper involvement in the process or a proper opportunity to become engaged in the disclosure process. It is a hare that cannot be allowed to run.

In relation to the submissions made by Mr Williams King’s Counsel, he suggested that there may be concerns in relation to the differences in the wording between the scope documents for Module 2 and Modules 2A, 2B and 2C.

In my respectful submission, nothing turns on a difference or any differences in language between those outline of scope documents. The modules are different, my Lady. They are different because they deal with and they address different decision-making processes. They are nevertheless fundamentally aligned, although I acknowledge that there may be differences in detail or in emphasis. But my learned friend should refrain, we would respectfully suggest, from believing that there is anything more significant in the differences in wording than that.

The evidence, which is what will really matter, will of course overlap between the sub-modules in Module 2, but that doesn’t necessarily mean that the evidence will be identical, and nor could it.

In relation to the submissions made by Ms Mitchell King’s Counsel, obviously it would be foolhardy of the Inquiry team to rule out any possibility of delay, but of course delay is not inevitable, even if it is not to be welcomed at all.

We make this point in relation to whether or not the Rule 9 process and the disclosure process, significant procedures as they are, may lead to delay. The more focused we can make the Rule 9 process, the more streamlined we can make the disclosure process, the more we can reduce the risk of delay.

She posed a question as to whether or not the timetable for Module 2 encompassed Modules 2A, 2B and 2C. Without letting too many cats out of the bag, because obviously Modules 2A, 2B and 2C will be addressed by you tomorrow and on Wednesday, they are entirely separate chronologically.

She also asked whether or not evidence would be led in writing. Yes, a great deal of evidence will have to be led in writing, but it won’t all necessarily be read out.

Turning then to some of the submissions made on behalf of Save the Children UK, Just for Kids Law and the Children’s Rights Alliance for England by Ms Twite.

She raised the important issue which I’m going to call, with a terrible modern euphemism, the cross-cutting issue of how matters in relation to, for example, education and the impact of the pandemic on children and young persons would be divided between the early module, Module 2, and the later module which, as I’ve said, will deal with education, children and young persons.

The answer is this: Module 2, as I’ve said already, will be looking at the extent to which decision-makers had regard to the particular interests of children and young persons, and in a very broad sense the likely consequences on the educational structure in the United Kingdom.

That’s because the focus of Module 2 is on the etymology of the decision-making itself. But the issues, for example, the detailed consideration of the impact on schools and on children and young persons, are not falling, and they’re not intended to fall, within Module 2. We simply cannot look at the specific impact in relation to every sectoral group in the context of examining whether the government failed adequately itself to look at those issues.

If the government failed to look at a particular impact or a particular area or the likely consequences on a particular societal group, then that omission and failure will be absolutely apparent.

In relation to some of the points made by Ms Sivakumaran on behalf of the disabled people’s representative organisations and the long Covid sufferers, Long Covid Kids, Long Covid SOS and Long Covid Support, she invited you to consider making express reference to inequalities as part of each paragraph of the outline of scope document.

My Lady, we would invite you to decline to accept that invitation, however well advanced, and that’s because you have made it absolutely plain in your opening statement, as it is reflected in the terms of reference, and I’ve repeated this morning, that the issue of the extent to which disabilities and inequalities were considered by the government is at the heart of Module 2, and you have tied that issue directly to the issue of the government’s decision-making.

Properly analysed, each paragraph in the outline of scope document is just one facet of government decision-making. Each paragraph is a reflection of the various government functions that were in play. So it necessarily follows that inequalities will be considered, along with disabilities and all the other ways in which the government decision-making had the impacts that we believe it had, as part of Module 2. All the themes will be examined in part through that prism.

Turning next to the submissions by Ms Davies King’s Counsel on behalf of Solace Women’s Aid and Southall Black Sisters.

One of her central submissions focused on the iniquity of omission, if you like, on how the Inquiry would be able to identify whether or not there had been a failure by government to consider the important issues that it was obliged to consider, and on whether or not the Rule 9 and disclosure process would enable that feature of government decision-making not to be discovered.

My Lady, as I’ve said already, one of the central parts of Module 2, and one of the central issues, is your determination to assess how the government weighed disabilities and equalities in the balance in its decision-making.

As I’ve said, when the material comes back from the various government departments, it will be apparent immediately whether or not there was any or any sufficient consideration of those issues on the contemporaneous documentation, on the face of the contemporaneous documentation.

So if any particular government decision-maker failed to have adequate regard to the particular issue, then, as I’ve said, that omission will be apparent, and it will have a forensic significance all of its own.

She advanced also further submissions in relation to the Rule 9 disclosure process, and she suggested that it would be a fairly straightforward process simply for the Rule 9 requests to be disclosed to the core participants.

As I ventured to suggest, no core participant would ever be satisfied with mere sight of the requests; they would inevitably wish to prefer them to be redrawn or recalibrated and, given the number of core participants and requests, that would impose an impossible burden on the Inquiry.

Mr Dayle, on behalf of the Federation of Ethnic Minority Healthcare Organisations, advanced a particular submission concerning the degree to which you would examine the extent of institutional racism, and also the general subject and the important issue of the way in which government goes about recording the number of fatalities in the black and Asian minority ethnic communities, and also through the prism of the BAME workforce.

My Lady, those are extremely wide and complex issues, and I think all I can say at this stage is they cannot possibly be answered solely through the prism of Module 2. Module 2 cannot bear the weight of that sort of scrutiny because it is not a module designed to look at, in a broad sense, whether or not all the various aspects of the government are indeed institutionally racist.

What Module 2 will do instead is it makes it a forensic and evidential issue, and of course in the prism of Module 2 you will be asking suitable witnesses – and no doubt based upon the material which is disclosed – whether or not, in relation to specific decisions, those decisions were infected by that sort of iniquitous behaviour.

So the answer to my learned friend’s submissions is not: yes, Module 2 or any module can look thematically at that concept, but yes, of course the right people will be the asked the right question as an evidential issue in relation to that theme.

He advanced further submissions dealing with specifically the way in which the Inquiry intended to look at impact on various sectors of workers and healthcare, the care sector, the educational sector, and the public sector generally.

You have determined that later modules will look at the impact on various sectoral groups, and this is where the examination of the impact will be predominant, but it’s not an issue – for the reasons I’ve attempted to espouse – in relation to Module 2.

So, my Lady, that is all that we would say by way of response to the many thoughtful and enlightening submissions that you have heard.

Lady Hallett: Thank you very much indeed, Mr Keith.

Thank everybody for attending, all of you who have made submissions. When I designated what seemed to me to be rather a large number of core participants, I did so on the basis, I hoped, they would all provide great assistance to the Inquiry, and that’s how it is proving to be. So thank you all very much for your submissions.

I have already indicated that I have an open mind and the Inquiry remains flexible, and that I do undertake to ensure that all your submissions are taken into very careful consideration before I reach any decisions. So, thank you, everybody.

For those who are interested in the Modules 2A and 2B: as you have already heard, 2A and 2B, Scotland and Wales, tomorrow, and then 2C, Northern Ireland, on Wednesday.

Thank you very much indeed.

(3.48 pm)

(The hearing adjourned until 10 am on Tuesday, 1 November 2022)