Transcript of Module 2 Preliminary Hearing on 1 March 2023

(10.30 am)

Lady Hallett: Welcome everyone to the second preliminary hearing into Module 2 of the Covid-19 UK Inquiry into core decision-making.

May I first of all explain the format for this hearing. As those who have been following the Inquiry’s proceedings closely will know, the format has been different for different hearings. The first hearings for Modules 1 and 2 were in-person at our proposed hearing centre, with proceedings streamed for those attending remotely. However, the hearing centre that we have chosen for the bulk of our hearings requires considerable work to be done to be fit for an inquiry of this size. We hope that most of that work will be completed before the summer when we plan to hold evidentiary hearings. All evidentiary hearings will be held in-person subject to any emergency and they will be streamed to those attending remotely.

In the meantime, the Inquiry team had to find alternative solutions for the preliminary hearings in the timetable. I decided that the first preliminary hearing in each module must take place in-person if at all possible. That is why yesterday’s hearing for Module 3 was in-person.

But hearings in-person away from the hearing centre are very costly and I have a duty to protect the public purse. I decided therefore that second or third preliminary hearings for each module could be heard remotely to ensure cost-effectiveness. Hence today is a remote hearing. I am in a building in central London and counsel to the Inquiry are in a separate room. Solicitor to the Inquiry is in the same room as I am.

In a moment Mr Keith, KC, counsel to the Inquiry, will outline the issues we will have to consider today. I’m grateful to all those Core Participants who have submitted their comments in writing for me to read in advance. But before I call on him, may I correct some misunderstandings in the reports of yesterday’s proceedings and the release today of Government WhatsApp messages.

First, this Inquiry will not drag on for decades. I have been determined from the outset that the Inquiry must reach conclusions and make recommendations as soon as possible if we are to achieve our aim of learning lessons and reducing suffering in any future pandemic. That is why I sought the express agreement of the then Prime Minister to issue interim reports and I have given instructions to the module teams that that is what I wish to do whenever possible.

However, if we are to conduct a thorough and effective investigation it will take some time, despite the Inquiry team working flat out. I know of no other inquiry of its kind in the world, ie one in public, with statutory powers to obtain evidence, with Core Participants playing important roles, and with extraordinarily broad terms of reference. So with respect to certain commentators, comparisons to other countries are unhelpful.

Furthermore, I wish to emphasise: there will be no whitewash.

Second, I should like to reaffirm my commitment to ensure equalities are at the forefront of the Inquiry’s work, and that means they are at the forefront of every module. There is no question of any group being sidelined or that I am not listening to them. I am. The only question is how we ensure we investigate inequalities properly and we investigate properly the disproportionate number of deaths in particular groups and communities.

In a moment, Mr Keith will outline some of the steps we have already taken. Yesterday, I heard submissions on the subject of structural racism and whether I should instruct an expert in that field. I will hear more submissions today on the same subject. But they are submissions. I have not yet made a decision.

Therefore, it is wrong to report that the Inquiry has made a decision it hasn’t.

It is also wrong to accuse the Inquiry of failing to examine the issue of racism. It is something very much that we intend to do.

Before I hand over to Mr Keith, may I also repeat something I said yesterday in relation to the Listening Exercise, Every Story Matters. Some Core Participants, but not all, have complained they do not have enough detail of the exercise. It is a huge project and, again, probably one of the biggest of its kind. The Inquiry team, with the task of designing and developing it, have also been working extremely hard and doing their best to consult with the appropriate groups and organisations and explain to them what they are doing as they go along. But I have asked them to redouble their efforts to explain what they are doing.

To this end, the latest Inquiry newsletter will be published this week. It sets out in clear terms what has been happening and the team will be holding a webinar shortly at which they will attempt to answer any questions and give further explanation.

Could I invite those who have concerns to read the newsletter and/or attend the webinar.

I think I better turn to Mr Keith.

Mr Keith.

Mr Keith: I think, my Lady, in light of your predicament, we should probably pause for a moment or two.

Can we ensure the feed is cut for a moment and perhaps I pause until you are able to gain your breath.


Submission by Mr Keith, KC

Mr Keith: My Lady, this is the second preliminary hearing, the first one having been held by you on 31 October, almost four months ago. I don’t propose to reintroduce the core participants or their legal representatives. There remain 39 Core Participants in Module 2, and all bar three are legally represented.

Written submissions for today’s hearing have been received from 20 Core Participants and a number of those have made joint submissions. May I add my thanks and those of the Inquiry team to your own, my Lady, for those submissions. We are very grateful to all the Core Participants for having provided us with their observations and insights and also for the brevity with which they have done so.

I believe you will be hearing oral submissions from all Core Participants, in some cases jointly, bar one; that is to say, all the Core Participants who have filed submissions.

Since 31 October, a great deal of work has been done, and at a very considerable pace. As of yesterday, 81 formal requests for evidence under Rule 9 of the Inquiry Rules have been sent out relating to entities, persons and organisations in Module 2 alone. 85 more have gone to entities and persons where the issues raised span not just Module 2 but Modules 2A, 2B and 2C also.

217 questionnaires have gone to members of SAGE and Independent SAGE. The Rule 9 requests are formal requests for documents and, in many cases, witness statements. Most are long and complex. Particularly in the case of key decision makers, for example Government ministers. To give you a sense of the breadth and the width of the Inquiry’s breach, the Rule 9 requests include such entities and bodies such as the British Medical Association, the Cabinet Office, Department for Business, Energy & Industrial Strategy, the Department for Education, Transport, Work and Pensions, Digital, Culture, Media and Sport, Health and Social Care, Treasury, the Home Office, Ministry of Justice, NHS Digital –

Baroness Hallett: Forgive me, Mr Keith, I have to ask you to stop. Not only have I started this hearing with a coughing fit, for which I apologise, but also we have a technical problem and I have asked we have a short adjournment. I’m really sorry, everybody.

Mr Keith: Of course.

(A short break)

Baroness Hallett: (No sound transmission) … my coughing fit earlier, I hope we’ve resolved all the problems. Technology is wonderful when it works; but even the best technology can, I’m afraid, sometimes have problems. So, Mr Keith, if you could return, please, to your submissions. Thank you.

Mr Keith: My Lady, I gather there was a problem with the feed when I began to speak, but happily not a problem with the feed when you were speaking, so, with your permission, I will restart my submissions.

So, my Lady, this is the second preliminary hearing, the first one having been held by you on 31 October, almost four months ago. I don’t propose to reintroduce the Core Participants or the legal representatives. There remain 39 Core Participants in Module 2 and all bar three are legally represented.

We have received written submissions for today’s hearing from 20 Core Participants, and we are very grateful to all of them for having provided us with their observations and their insights and for the brevity with which they have done so. I believe you will be hearing oral submissions from all of them, in some cases jointly, bar one participant.

In terms of progress, since 31 October a great deal of work has been done and at a very considerable pace. As of yesterday, 81 formal requests for evidence have been issued under Rule 9 of the Inquiry Rules. These have been sent out to entities, persons and organisations in Module 2. 85 more Rule 9 requests have gone to entities and persons where the issues raised span not just matters arising in Module 2 but also Modules 2A, 2B and 2C. Furthermore, 217 questionnaires have gone to members of SAGE and Independent SAGE.

Dealing firstly with the Rule 9 requests, these are formal requests for documents and, in many cases, witness statements. Many are long and complex, particularly in the case of key decision makers, for example Government ministers. But to give you a sense of the breadth and the depth of the Inquiry’s reach, the Rule 9 requests include recipients such as the BMA, the Cabinet Office, the Chief Medical Officer, the CPS, Department for Business, Energy and Industrial Strategy, the Departments for Education, Levelling Up, Transport, Work and Pensions, Digital, Culture, Media and Sport, of course Health and Social Care, the FCGO, the Government Office for Science, and many more.

We have also issued Rule 9 requests to 11 regional mayors, including the Mayor of London, Sadiq Khan, and the Mayor of Greater Manchester, Andy Burnham. Rule 9s have gone to ministers, including Boris Johnson, Dominic Raab, Matt Hancock, Liz Truss, Michael Gove, Kemi Badenoch, Steve Barclay, Michael Ellis KC, Penny Mordaunt and Justin Tomlinson.

A request for a witness statement has gone to the Prime Minister, Mr Sunak, or rather it is due to be issued in the next week or so. We have also issued requests for witness statements from the First Minister of Scotland, Nicola Sturgeon; the former First Minister of Northern Ireland, Paul Givan, and the First Minister of Northern Ireland, Baroness Foster; the former deputy First Minister of Northern Ireland, Michelle O’Neill; and the First Minister of Wales, Mark Drakeford.

Rule 9 requests will also be the sent to Professor Sir Chris Whitty, Professor Dame Jenny Harries, Professor Jonathan Van-Tam and Professor Sir Patrick Vallance, all of whom are, of course, extremely well known.

We have requested witness statements from persons who held positions in the Cabinet Office at Number 10. Such persons include: Lord O’Donnell, Simon Case, Helen MacNamara, Lord Sedwill, Dan Rosenfield, David Halpern, Lee Cain, Jack Doyle and Dominic Cummings.

Each of these witnesses has been asked to disclose to the Inquiry emails and other correspondence relevant to the issues addressed in their proposed witness statements, any informal or private communications about the UK Government’s response to the Covid 19 pandemic to which they were party. And these documents include and are not limited to informal group communications such as text messages and WhatsApp group messages, private messages, email communications and contemporaneous diary or other notes. We have cast our net, my Lady, widely and with a fine mesh.

I should say that in respect of Government employees, we understand arrangements are being made to reassure civil servants that they can come forward and provide evidence to the Inquiry freely and fully.

Naturally, in light of certain press reporting concerning Mr Hancock’s WhatsApps, we would also encourage anyone who has (brief loss of audio) information to give and whom we ourselves have not yet approached to come forward and contact us.

In September of 2022, Module 2 issued 200 Rule 9 questionnaires to our participants SAGE and its subgroups, and 17 Rule 9 questionnaires to members of Independent SAGE. We have also issued detailed Rule 9 letters to the participants of certain members of SAGE and its subgroups, such as Professor Michie, Professor Edmunds, Professor Medley, Professor Ferguson, Professors Horby, Woolhouse and Gowers and several more.

We have also issued Rule 9 requests for a witness statement and disclosure of documents from Professor Carl Heneghan, Professor Sunetra Gupta and Professor Anders Tegnell, all of whom attended a certain meeting in Downing Street in September 2020.

Turning to organisations and bodies relevant to at-risk or vulnerable groups. Module 2, in conjunction with Modules 2A, 2B and 2C, has issued over 80 Rule 9 requests for such organisations and bodies representing the interests of women, black and minority ethnic groups, children and young persons, those affected by health and inequalities, those suffering from mental health issues, older people, disabled people, workers groups, the bereaved, LGBTQIA, and the traveller, gypsy and Roma community. There will of course be yet more Rule 9s issued in due course.

My Lady, I will say a little more on the issue of expert evidence in a moment but I need to put to rest any notion, as you have done, that the Inquiry is not addressing the hugely important issue of structural racism. The Inquiry is indeed seeking to enquire into the two core issues of: firstly, the impact of the pandemic on at-risk or vulnerable or marginalised people and on black and minority ethnic groups; and, secondly, whether, in all that it did in relation to planning for and responding to the pandemic, the Government and the devolved administrations properly took into account the considerations and interests of black and minority groups and those who were at-risk or vulnerable or marginalised.

I say that with complete confidence for a number of reasons. Firstly, the terms of reference oblige the Inquiry to consider any disparities evident in the impact of the pandemic on different categories of people, including but not limited to those relating to protected characteristics under the Equality Act 2010 and equality categories under the Northern Ireland Act 1998. The characteristics that are protected by the Equality Act 2010 include race.

Secondly, you have repeatedly stated your determination to ensure that inequalities, including race, are addressed in every part of this Inquiry’s unprecedentedly wide scope.

Thirdly, Module 1 is already enquiring into, by way of direct and forthright Rule 9 requests to Government and devolved administration planners, whether and to what extent pre-existing inequalities in the population were taken into proper account in planning for a pandemic. We have asked to what extent were inequalities considered as part of the UK Government and the devolved administrations’ risk assessment processes. We have asked what structures were responsible for reducing inequalities in England and in the devolved nations and what role did those structures have in pandemic planning.

As you know, because you referred to it in the course of the Module 1 preliminary hearing, the Module 1 team intends to call Professor Marmot, author of the seminal report Fair Society, Healthy Lives, and Professor Bambra. Professor Marmot is one of the world’s leading experts on, among other issues, the effects of the pandemic and the societal response had on social and economic inequalities.

Fourthly, the scoping document for this module, Module 2, states in the plainest terms that the Inquiry will identify at-risk and other vulnerable groups and the assessment of the likely impact of the contemplated non-pharmaceutical interventions, decisions in relation to social restrictions, lockdowns and so on, on such groups in light of existing inequalities.

Putting it plainly, did the Government and key decision makers, when making their core strategic decisions, properly have in mind and take into account the considerations and interests of black and minority groups and those who were at risk or vulnerable or marginalised?

When, we are asking, did they first become aware of the disproportionate impact of the pandemic, black and minority ethnic groups, and the appalling fact that – likely through a mixture of unequal access to health services, existing inequality, and because many were frontline health and other key workers, which meant they were more exposed to Covid – black and minority ethnic groups suffered disproportionate health outcomes and rates of death?

So we are addressing head on the issue of whether the Government’s decision-making had prejudicial outcomes in terms of race.

That is why, my Lady, you have granted Core Participant status to a cross-section of inequality groups, to ensure that those questions are properly put.

The issue of inequalities, which necessarily include the position of black and ethnic minority groups, have been included in almost every Rule 9 request in Module 2. We’ve sent a Rule 9 request for a corporate statement to the Cabinet Office Equality Hub, which includes the Race Disparity Unit. Their response outlines the work the unit carried out in relation to the impact of the pandemic on ethnic minorities.

We have also sent a Rule 9 to the Equality Hub minister, Kemi Badenoch, Member of Parliament, the Minister for Women and Equalities, who was asked by the Prime Minister to lead on the UK Government’s work on the assessment of the impact of Covid on ethnic minorities through the Covid disparities quarterly report, which then assisted the Government in its response to Covid. We have asked Kemi Badenoch a number of questions about this work on analysing and tackling the disproportionate impacts of Covid-19 on ethnic minorities.

We will be examining the substance of Public Health England’s report, COVID-19: review of disparities in risks and outcomes, concerning the impact of Covid on disparities, including racial disparities.

We’ve sent a Rule 9 request to the Equality and Human Rights Commission, whom we understand will be well placed to assist us in looking at the impact of Covid on at-risk and vulnerable groups.

And lastly, the questionnaires to SAGE and Independent SAGE encompass questions on at-risk and vulnerable groups, and include specific questions relating to the diversity of advisers, SAGE and the subcommittees, to health inequalities, including race and economic inequalities, and the impact of such issues on the advice that they gave.

We have also sent a very significant number of impact questionnaires to bodies and organisations representing ethnic minorities from which we seek information about the extent to which they engaged with the UK Government on the impact of Covid in their communities, and their views on the extent to which the core decision makers in the UK considered ethnic minority communities when making their decisions.

Module 2, along with the relevant devolved modules, has sent Rule 9 impact questionnaires to a number of organisations representing and supporting ethnic minority communities, including Race Equality Foundation, the Runnymede Trust, Southall Black Sisters and Federation of Ethnic Minority Healthcare Organisations. It has also, finally, sent Rule 9 impact questionnaires to groups representing the bereaved, such as Covid 19 Bereaved Families for Justice, Scottish Covid Bereaved, the Covid-19 Bereaved Families for Justice Cymru, the Northern Ireland Covid-19 Bereaved Families for Justice group, and Cruse Bereavement Support.

Turning then to Module 3, finally, as you know, because this was a matter in debate yesterday, the scope of Module 3 includes in terms, in its scoping document, at paragraphs 7 and 10, obligations on Module 3 to consider the impact of the pandemic on doctors, nurses and other healthcare staff by reference to ethnic background and deaths caused by the Covid pandemic in terms of numbers, classification and recording by reference to ethnic background and geographical location.

Later modules will continue to consider inequalities, as you have said. And at their heart will undoubtedly be the fact that, as the very latest ONS data shows, despite the gap closing in recent months, almost all minority ethnic groups died disproportionately from Covid.

My Lady, from the plainest terms, the very issue that some in certain quarters have questioned, namely the Inquiry’s determination to address the impact of the pandemic and the Government’s response on black and minority ethnic groups, far from being ignored, runs like a steel wire through the entirety of our world. I repeat, we are absolutely investigating the factors which caused minority ethnic people to die at these appalling disproportionate rates.

My Lady, at the same time, the very fact alone that the Inquiry has reached out to the many bereaved groups by way of the Rule 9 requests that I have mentioned, put their views, insights and, I’m bound to say, very helpful leads, demonstrates our unwavering commitment for engaging with them too.

I now need to turn to the issue of expert evidence and the suggestion that expert evidence be called to assist you in relation to the issues of institutional racism and structural racism.

As you know, my Lady, a number of organisations have called for such evidence, and they have also called in relation to whether the Inquiry is looking at structural racism at all.

I have just addressed you in relation to all the many areas in which the Inquiry is looking at such an issue but some in certain quarters have claimed that the Inquiry is not addressing the issue of structural racism and nor is it considering the issue of the extent to which the Government understood the possible impact of its decision making and the actual disproportionate impact of the pandemic and its own, the Government’s, responses.

The claim, as I have said, that we are not looking at those issues is wrong and unfair. But there is a need to separate and distinguish between whether the pandemic exacerbated racial disadvantage, disproportionately affected people of colour, and whether the Government and devolved administrations’ actual decision-making led to the perpetuation of racial and cultural disadvantage, and whether such advantage or disadvantage or discrimination was institutionalised in those Government bodies and entities.

As I have said, the impacts and the nature of the decision making are absolutely at the centre of the Inquiry. In addition, the Inquiry is already looking intensely at the way in which protected characteristics were or were not properly safeguarded in the particular context of each module.

But such an inquiry cannot of itself establish that racism was institutionalised. Whether it was is essentially a finding of fact. A finding that there was a system in place in which public policies, institutional practices, cultural representations, did work in a way that perpetuated and embedded racial group inequality. But that is a wider and more complex issue.

If that is the conclusion that you reach (namely, that such practices and beliefs were embedded and had become institutionalised), I have no doubt at all that you will not hold back from saying so.

We will obviously – you will obviously consider the Core Participants’ submissions as you always do concerning the instruction of expert evidence, but I would be failing in my duty if I did not introduce three notes of caution.

First, as has been said in legal jurisprudence concerning discrimination cases, a finding of institutional racism must depend on what inferences it is proper for you to draw from the primary facts. It will be a matter for you to determine whether you find that such institutionalised racism existed, of course with the help of the Core Participants. So before you could do so, there would have to be a proper factual foundation.

The second point is a related one. Having an expert opine on whether she, he or they think there was structural racism may be of little utility given that ultimately it is a matter of fact for you. But you will, of course, bear in mind everything that has been said on that point from the Core Participants in their written submissions and no doubt orally to you in due course.

Third, it will be difficult to go about building the foundations for such a factual finding in Module 2 because Module 2 is not looking at every part of Governmental structure in the United Kingdom or, because of Module 2, the UK Government structure. It is looking at the core decision-making and so the reach of the Inquiry in terms of what documents we call for, what people we examine, and what issues we look at in detail will be confined within that boundary.

We are not looking at the entirety of the Government structure, which is of course where you would need to look to see the indicia of embedded institutionalised racism.

But, my Lady, those points are all put forward by way of submissions. You will reach your own view, as you have already today stated that you will, as to whether the Inquiry should instruct and call experts to assist you to decide whether there was structural or institutionalised racism; but as to whether the Inquiry is indeed looking at those issues, of that there can be no doubt whatsoever.

May I then turn to some of the specific requests which have been raised concerning the scope of Module 2, the issues which Module 2 seeks to address, and some of the individuals and entities in respect of whom the Core Participants encourage us to issue Rule 9s.

Baroness Hallett: Before you do, Mr Keith, I understand one of the Core Participants is having problems being admitted or re-admitted to the call and I wonder if we could pause now and let that person in.


Baroness Hallett: I really would rather we didn’t wait until the break because it is important …

Mr Keith: My Lady, it may be possible for whoever that person or entity is to follow on the YouTube link.

Baroness Hallett: Very good idea. Could we please send a message to the person to come in at the break and in the meantime follow on YouTube. I’m grateful. Thank you, Mr Keith. Sorry to interrupt you.

Mr Keith: Not at all, my Lady.

In relation to some of the specific requests made in the very helpful submissions advanced by all of the Core Participants, the Inquiry is in a position to address them as follows, and I should also say that all of them will naturally receive your very close consideration or at least those that I don’t address straightaway.

Covid 19 Bereaved Families for Justice, Northern Ireland group, at paragraph 7 to 11 of their written submissions, raise some very important points about Northern Ireland, the feature that the island of Ireland is a single epidemiology entity and the extent to which the collapse of the power-sharing agreement may have impacted the response to the pandemic.

My Lady, you directed in fact in December that the legal teams should directly explore into the relationship between the devolved Governments and the UK Government and between the Government in Northern Ireland and the Republic of Ireland and the island of Ireland as a single epidemiological unit. It is also very much an issue with Module 2C but in Module 2, and as far as we are concerned, we have already sought the views of Governmental Rule 9 recipients and the degree to which these issues played a part in their decision making.

Rule 9s have been sent to key decision makers in Northern Ireland and the Rule 9 request to Michael Gove, Member of Parliament, and the First Ministers of the devolved administrations have asked about the role that the British Irish Council played in facilitating inter-governmental relations. So we have those issues very much in mind.

The 85 or so Rule 9s issued to cover matters covering issues which span Module 2 and Modules 2A, B and C, the question has been raised in relation or the extent to which they address Module 2 issues. The vast majority have been sent to organisations which operate across the United Kingdom and so are issued on behalf of all four modules. But some, of course, are naturally specific to a particular devolved administration, such as Children in Wales or the Northern Ireland Youth Forum. Those will have been issued jointly by Module 2 as such organisations may potentially have been affected by decisions made by both the UK Government and the devolved administrations.

We have invited them to provide comments about both the response of the UK Government as well as those of the relevant devolved administrations of the nation in which they are based. So we have that breadth of request again very much in mind.

Thirdly, witness statements have indeed been requested in the majority of the Rule 9 requests and where we have requested responses to questionnaires, rather than statements, we will consider whether it is necessary in the course of preparing for the oral hearings to have the responses formally produced by a statement in due course. But the questionnaires which have gone to SAGE and Independent SAGE will remain as such for the time being. They will, nevertheless, all be disclosed.

Fourthly, we have not asked any specific questions of the Government decision makers concerning the extent to which those in custody were considered when core political and administrative decisions were made because that is an issue that is likely to be reflected in the material which we get back, in any event, and the issue of those in custody is more relevant for a later module.

I have addressed the important issues identified in the written submissions of FEMHO concerning structural racism, institutional racism and the need, as they see it, for expert evidence. But they also raise the issue of whether UK laboratory field modelling and case studies at the onset of Covid included references to race and/or ethnicity and if not, why not? We are very grateful to you for raising this issue which we will look at.

The issue of disability data collection, relatedly, has been raised by the disabled people’s organisations and again, thank you, we will look at that.

The Long Covid-related Core Participants asked whether they will be asked to provide further information. They have already received a request which they have responded to. I can’t answer that question today because we are still considering that helpful response.

But I should also say that Rule 9s which we have recently sent to key decision makers include questions about the extent to which consideration was given when making decisions about NPIs to the risk of Long Covid or health sequelae arising from Covid 19 infections.

My Lady, we have been asked whether we will be calling expert epidemiologists and public health experts in Module 2 on the development of the pandemic. This is unlikely, although we will reflect further because we will, in any event, be calling a multitude of epidemiologists in Module 2 on this essentially factual issue.

In relation to the disabled people’s organisations’ submissions, and the extent to which Government decision makers and advisers did specifically have disabilities in mind, we have sent a Rule 9 request to Justin Tomlinson, MP, the former Minister for Disabled People, about his role in relation to the United Kingdom government work. We have also received back from our Rule 9 request to the Government Equality Hub, considerable detail about the work of that hub and of Mr Tomlinson in considering the impact of Covid on disabled people.

But more generally, in our Rule 9s to the core decision makers, we have asked to what extent sufficient consideration was given in decision making, the impact of NPIs on at-risk and other vulnerable groups, and also the extent to which they considered and produced equality impact assessments when those decisions were made. Disability, as you know, is covered as a specific protected characteristic.

The disabled people’s organisations raise further a number of helpful suggestions in relation to the scope of the expert reports which have been commissioned from Gavin Freeguard, Alex Thomas, Professor Ailsa Henderson and Professor Hale. There is much in those submissions for us to consider. We will do so.

Some of the issues which they have raised are already addressed in Module 1 and have been the subject of Rule 9s in that module. Government bodies have been asked general questions about the extent to which vulnerabilities and inequalities were considered. We will consider specifically the suggestion that a Rule 9 be sent to the Equality Commission.

Several of the Core Participants have asked whether the expert reports in Module 1 will be disclosed or at least made available in Module 2. The short answer is that by the time of Module 2 the expert reports and the evidence in Module 1 will be in the public domain and available.

But it is also likely we will seek to formally introduce parts of that expert material on the basis that it will be of assistance and relevant; for example, the reports from Professors Sir Michael Marmot and Clare Bambra.

We are very grateful to Save the Children UK, Just For Kids Law and the Children’s Rights Alliance for their suggestions and we will consider them.

Turning to the Bereaved Families for Justice Cymru’s submissions, paragraphs 2 and 3, these are matters that we had very much in mind, some of them in fact have already arisen in the context of Module 1.

We have asked core decision makers generally about the decision to use Public Health legislation to govern the UK Government’s response to Covid-19 rather than the Civil Contingencies Act, and we have asked to what extent that decision took into account the potential that it could lead to a divergence of approach in the response to Covid across the nations in the United Kingdom.

We have also asked about the processes for scrutiny and review of Covid legislation and the regulations.

Submissions have been advanced in relation to the director general of the Covid-19 Crisis Coordination for the Welsh Government, Mr Kilpatrick. Module 2B say that he is on their radar and they intend to send him a Rule 9 request in due course.

Turning to the local government association, they raise issues concerning access to and use of data by local Government during the pandemic. They have asked that the details be given of local data provided to the UK Government to inform its response to Covid and the use of data and modelling related to issues in the outline and scope. That is an issue which we have already addressed in our letters of instruction to Gavin Freeguard.

They also ask about the treatment of those in social care and the issues surrounding the managing of social care. Those are in fact the issues which will be addressed in a later module, the module concerning social care.

Turning to, finally but by no means least, Southall Black Sisters and their written submissions. Whilst we have sent a Rule 9 to the Home Office we have not sent separate Rule 9 requests to the paragraph 9 organisations, the organisations that they refer to in paragraph 9., namely the Forced Marriage Unit, the joint Home Office FCO unit, the Interpersonal Abuse Unit and the UK Visas and Immigration department.

But Rule 9 requests have been sent to all the organisations that they list in paragraph 11 of their written submissions, a Rule 9 has been sent to the Cabinet Office Equality Hub, the Domestic Abuse Commissioner and the Victims’ Commissioner for England and Wales. The Rule 9s which we have sent to organisations and bodies working with or representing at-risk or vulnerable groups all of course raise the issues which they themselves sought to raise in their written submissions.

Finally, they raise at paragraphs 11 to 16 issues concerning Northern Ireland, the power sharing collapse. That, as I have said, will be a matter that will be addressed in M2C, but it will naturally find reflection to some extent in Module 2 because, of course, the fact of the power sharing arrangements in Northern Ireland and the political position there was very much a factor that was in the mind of the Government when making decisions in Westminster.

My Lady, many thousands of documents and exhibits have been received from the documents provided so far. They amount to hundreds of thousands of pages, although, of course, not all of them are relevant and disclosable.

I want to commend the legal team in Module 2 for their diligence and hard work in scoping, drafting and issuing so many Rule 9s, and in dealing with a vast array of documentation which has already been received.

May I then turn to disclosure. I addressed you on the Inquiry’s disclosure processes in the confines of Module 1, on 14 February, and you gave a ruling on 17 February in which you referred publicly to the disclosure process. This, as you know, and as the Core Participants also know, is the burdensome process whereby each document must be individually reviewed, sifted for relevancy, redacted where necessary, and then sent back to the document provider for comment.

The process is not free of difficulties. But, in light of the fact that the commencement of Module 2 has inevitably gone back in view of the delayed start of Module 1, the problem is now less acute than it is in Module 1. As we explained in the counsel to the Inquiry note sent to the Core Participants in advance of this hearing, each and every document is required to be reviewed and irrelevant information, including to a very large extent personal data, redacted in accordance with redaction protocols which of course the Core Participants have seen.

Such irrelevant information, my Lady, includes the names of junior officials who did not take relevant decisions themselves or whom did not substantially contribute to the decision making or who played no important role in the implementation of decisions.

Such persons can obviously be distinguished from those persons who did hold more senior positions, persons in the Senior Civil Service who took decisions or implemented decisions. There is no secrecy issue here, my Lady, let alone a row, contrary to the suggestion in some quarters. The redactions are being made because they are the names and the personal data of individuals who are irrelevant because they played no material role. But nevertheless each redaction is provisional and, of course, it is subject to change as a result of further inquiries we make or matters raised by the Core Participants following disclosure to them of the redacted document.

But the problem that we are faced, as you know, is that given the profusion of policy documents and Government emails, there are thousands of redactions, the redactions of junior officials’ names and personal data that are required to be undertaken. And in many cases it is very difficult for the individual lawyers to be sure that a particular name is irrelevant, notwithstanding the exclusion of that individual from the list of the important persons or the persons who took the decisions that are material.

So the process of disclosure has slowed down considerably. But as you would expect, the Inquiry team has taken a number of steps which we are confident will speed the process back up, whilst ensuring that only irrelevant information is redacted. So we have increased the number of reviewers to review the documents, we have blocked redacting headers to emails, and we are working towards a system of automatic redaction by the document handling system of email addresses that are not relevant.

Plainly, documents have not gone out to the Core Participants quite as speedily as we might have wished, but we remain determined to disclose as many documents as soon as we can. And of course in that process we continue to rely upon the assistance of the Rule 9 document providers and of the Core Participants themselves.

Contrary, my Lady, as you’ve said earlier – contrary to what has been said in certain quarters, as you said earlier, the Inquiry has commenced its formal processes. Documents have been sent out. There are dates now in the diary for the evidential hearings and we are running at a very fast pace indeed.

Some of the Core Participants have suggested that we disclose documents to the Core Participants without the redactions on the basis that they will keep that irrelevant but personal data confidential to themselves.

The difficulty though, my Lady, is that the Core Participant groups extend for many thousands of people on account of the breadth of their own memberships and maintaining confidentiality would be difficult. Moreover, we have to make redactions at some point given that many of the documents will be publicly disclosed in due course and it is far easier and more sensible to do that job now. As of yesterday, we have disclosed 3,747 documents from a variety of entities and organisations and we anticipate disclosing around about 1,500 more over the next week or so.

Turning to the issue of the hearing length, Module 2 is currently scheduled for eight weeks. We note what is submitted in relation to whether that is long enough. But given the bulk of the documents have not yet been received, and given your own stated desire to have hearings that are relevant and not undermined by the passage of time, I’m loath to suggest to you today, considering an extension in the length of that provisional hearing date, given the impact of such an extension on the rest of the Inquiry, but my Lady I am sure that you will reflect on what has been said by the Core Participants and, as I have sought to emphasise, the date and the hearing, or the hearing length at any rate, is currently still provisional and we will keep on eye on it.

Relativity. Some Core Participants have expressed a degree of concern or at least frustration with the functionality of that system. Epiq is providing training sessions and there is a link to access videos of that training. We are also exploring options to provide the Core Participants with some additional functionality in terms of coding functions and an update will be provided shortly.

As for the disclosure of the metadata that is sought by one or two of the Core Participants, it is common practice for inquiries to disclose pdf images with redactions applied and necessarily with limited metadata. In part, that is to ensure that any sensitive information embedded within the materials or within the metadata is not inadvertently revealed. The documents disclosed to Core Participants need to be suitable for publication, as I have said, in their existing form.

Parliamentary privilege I can deal with shortly indeed. It is not an issue that need detain you because, although it was raised in the CTI notes for Modules 1 and 2 out of an abundance of caution so that Core Participants could understand the general approach that the Inquiry is taking to the issue of Parliamentary privilege, you ruled in your 17 February ruling, that there are no issues of principle that require determination given the practical approach adopted by the Inquiry. That remains the position.

The next issue, my Lady, on the agenda is experts. Some of the Core Participants, Covid-19 Bereaved Families for Justice, Covid-19 Bereaved Families for Justice Northern Ireland, and FEMO, have asked that the letters of instruction be disclosed now. My Lady, as I have submitted in the past, providing the letters of instruction now is neither necessary nor sufficient.

Firstly, the Core Participants already have an indication from the monthly updates the broad areas to be covered. Secondly, it is not necessary to have such disclosure now because there will be time enough in advance of the process of dealing with the witness evidence proposals for the Core Participants to receive and consider the draft expert reports themselves.

Lastly, the provision is not sufficient because the letters of instruction provide only the framework for any expert report and can say nothing, of course, about what the experts’ opinion actually is. The Core Participants need the draft reports themselves in order to be able to understand what is being opined upon. That is what we are providing.

Turning then to the issue of Rule 10 and the process by which Core Participants played their part, contributing meaningfully to this process by way of commenting on proposals put out by the Inquiry for how witnesses should be examined, and the process by which they may apply to you, the question of witnesses themselves. Submissions have been made in relation to that process in particular by the Long Covid groups.

My Lady, consistent with your ruling in Module 1 the Inquiry intends to put into place an additional process whereby the Core Participants, following the submission of their submissions, and observations on our witness proposals, may be permitted to meet counsel to the Inquiry in advance of the hearing so as to be able to better explain the submissions that they have advanced, to put forward further observations in relation to their proposals. In effect, it is an informal route by which they can return to the fray and reargue points with CTI. My Lady, it is a second opportunity to bend our ears and we gladly accept such a proposal. Of course, all Core Participants will be entitled to make applications under Rule 10(4 (that’s to say, Rule 10(4) of the Inquiry Rules) for permission from you to ask questions of a witness.

The Scottish Inquiry. My Lady, on 23 February, the UK Covid Inquiry and the Scottish Covid-19 Inquiry published details of how they will work together by way of a memorandum of understanding. The memorandum signed by both Inquiries includes commitments to provide clear information to the public about how each Inquiry will carry out its investigations in Scotland and the United Kingdom, minimise duplication of work, so information sharing, and maximise value for money. The Inquiries intend to meet monthly, will share information on the topics and discuss issues which arise which are of common application and common concern.

My Lady, I know, and you have stated to those concerned with this process, that you are committed to exploring opportunities to share facilities, to avoid duplication, and to ensure that the most can be done to ensure no duplication and that members of the public, in particular, know to which Inquiry they may direct their own concerns and enquiries.

Ms Mitchell, on behalf of the Scottish Covid Bereaved, has raised an issue about the extent to which the findings and recommendations of one may be incorporated by the other Inquiry. This is still to be worked out. But there is of course no legal impediment to one Inquiry formally receiving evidence collated by the other Inquiry or to one Inquiry, having properly considered its own evidence, reaching a view that is reflective of the views reached by the other.

My Lady, may I then turn finally by way of substantive submissions to the issue of the Listening Exercise, Every Story Matters. In your Module 1 ruling, you directed the Inquiry team to consider ways in which the communications with Core Participants of the details of this important process could be improved.

As many of the Core Participants will be aware, a newsletter is shortly to be sent out containing a great deal of detail, alongside details of a webinar to ensure that as many people as possible can understand the work that is being undertaken, but let me attempt to provide some of that detail.

The Listening Exercise will provide different ways for people to share their stories which, when considered against the background, inequality and the diverse nature of society of which I have already spoken, will be vital to its successes. There will be a web form with a save and come back feature enabling people to tell their stories at a pace and in a place that’s right for them. This is in fact, or will be, an improvement to the form that’s already there and the Inquiry’s thanks go out to all those who have used the existing pilot form and given such valuable feedback so far.

But for those who cannot go online, there will of course be alternative ways for them to share their stories, including a phone line, a paper form. There will also be in-person sessions, held to reach seldom heard or unrepresented groups. The Inquiry is looking to hold community listening events across the United Kingdom, and those sessions will be attended by Inquiry staff. We know you are anxious to attend if time permits given the demands of the public hearings.

I emphasise that the Inquiry will be taking a trauma-informed approach in all aspects of Every Story Matters and emotional support will be available. Trauma-informed training will be provided for anyone speaking to members of the public about their experiences and we hope to ensure that all those who speak and share with the Inquiry and its staff their stories are safe and supported.

Experiences, the stories, will be gathered and analysed by experts in research and analysis – not, I hasten to add, by media or communication firms and I will come back to this issue in a moment.

But, my Lady, because we don’t have enough capacity in the Inquiry team to process hundreds of thousands of maybe more experiences and stories, we have to procure the specialist expertise to help us to make the system work. Reports will be produced, as my Lady you have said in the past, for each relevant module investigation and these reports will then be submitted as evidence, disclosed to the Core Participants and published as part of the hearings for each module of the Inquiry.

The way we plan to gather people’s stories will help the Inquiry to obtain as broad an evidence base as possible about the impact of the pandemic. It will assist the Inquiry to reach robust findings and recommendations.

My Lady, in recent days in certain quarters, concern has been expressed about one particular aspect of this process; namely, the involvement of a particular third party which is believed to have worked with the Cabinet Office throughout the pandemic and yet has been stated by some as being involved in some way in the listening aspect of the proposed Listening Exercise. So may I make a number of points about this.

The use of the company called 23red, a subcontractor in fact, gives rise to no conflict of interest, either actual or perceived. This is because 23red worked as part of the Covid hub led by the Cabinet Office and was concerned in distributing a range of Covid-19 related communications. It was not involved in any decision making that matters to us. It was one of the vehicles by which the Government got its messages out to the public. So that role gives rise to no conflict with any use in this Inquiry because it is currently only a communications facilitator.

Public communications are needed to engage people across all four nations in the United Kingdom and to enable them to take part in Every Story Matters. We require specialist communication expertise to help us determine the best way to engage people to share their experiences, particularly those who are under-represented or not always heard, and that’s the expertise that 23red brings. It brings experience of building partnerships to organisations across society to share information, again, I repeat, to enable us to hear what is being said but not to be involved in the analysis in any shape or form of what those experiences amount to.

The company is not involved in any way with the listening part of the Listening Exercise with the receipt of the experiences, with the members of the public who contact the Inquiry, or with the analysis of the information. All that will obviously be handled by the Inquiry and other appointed experts and suppliers.

The involvement of 23red is also actually limited to the current pilot stage of the Listening Exercise. The tender process for the next phase has not yet concluded. More information will be coming out in the coming weeks about what will be procured. But ahead of that point, may I say something about the procurement rules that the Inquiry must follow.

The procurement of the services we need to deliver the Listening Exercise have to be conducted through the Crown Commercial Service. The Crown Commercial Service provides commercial expertise to a wide number of public and third party sector organisations. It provides the Inquiry with a route to market through a pre-approved suppliers who enable the Inquiry to secure the services that we need. The alternative, my Lady, would be to recruit more staff to run the procurement process in-house with higher costs to the taxpayer and may also lead to a less effective procurement.

We can’t exclude any company from being on the Government framework – when I say “Government”, I mean the Crown Commercial Service framework – or bidding for work if they wish to do so. But, plainly, we seek assurances from all suppliers that there is no conflict of interest and we demand the disclosure to us of information to allow us to decide whether one might exist.

So it is possible that the new contracts to be procured could include 23red – they are legally permitted to bid – or they might not. But it is important that the Inquiry follows the proper procurement rules and is fair and transparent.

Finally, may I also say that the Inquiry has appointed a six-member ethics review panel to provide independent, ethical oversight of the research (unclear) and the approach of the Every Story Matters exercise, chaired by the Queen’s University Belfast professor, David Archard.

My Lady, I hope those submissions address the concerns which have been expressed in some quarters concerning that particular subcontractor.

Commemoration is an issue which is addressed in counsel to the Inquiry’s note. A series of meetings have been scheduled with the Bereaved Families for Justice Group Leeds and others to ask for their support in finding people who would either be willing to be filmed for videos or to speak with artists to hep us shape the tapestry which forms the basis of the commemoration process. Progress has been excellent and the Inquiry team has been hugely moved, in fact, by the stories that have been shared so far and we are confident that, through working with the artists who have been engaged, we will be able to produce emotive and impactful pieces of art and video.

Procedurally, some of the Core Participants have suggested that there be a further preliminary hearing in the summer in addition perhaps to one in September. My Lady, it is an sensible suggestion and we have it in mind. Further details will of course be provided in due course but such an additional preliminary hearing is likely to be in July.

Related to the issue of a further preliminary hearing, may we ask you to consider the issue of the provision of a list of issues by the Inquiry team? That then will provide a basis upon which submissions can be directed at the preliminary hearing and will give the Core Participants a better understanding of the direction of Module 2. May we invite you to direct that the Module 2 team provide such a list of issues by the end of April or early May, depending on what you hear in due course in a moment from the Core Participants.

Two further relatively academic issues. May we seek your permission to publish the Core Participants’ submissions and the note from counsel to the Inquiry on the website. And, finally, I should just say that the public hearing in this module, Module 2 will take place at Dorland House at Paddington, London, W2.

My Lady, those are all the points that I wish to place before you and to address you upon. You may consider this is a convenient moment to give the poor stenographer a break from his or her endeavours.

Baroness Hallett: Thank you very much, Mr Keith. We will break until 12.05 pm, please.

(11.48 am)

(A short break)

(12.05 pm)

Baroness Hallett: I now call upon Ms Anna Morris. Ms Morris, are you there?

Ms Morris: Good morning, my Lady, can you see and hear me okay?

Baroness Hallett: I can, thank you very much.

Submission by Ms Morris

Ms Morris: Good morning. I alongside Mr Weatherby KC represent the Covid-19 Bereaved Families for Justice. We have made joint written submissions with the Northern Ireland Covid Bereaved Families for Justice, and I have agreed with Ms Campbell KC that she will deal with the sections of our joint submissions in particular that pertain to Northern Ireland.

I propose to draw out and emphasis some of the key points we press upon you from our written submissions, which I know you and your team will have considered carefully.

I would like to focus on five topic headings. The first, I would like to make some observations on the scope of Module 2. The second, some short points on timetabling and hearing dates. The third, some short points on Rule 9 and disclosure. The fourth topic, evidence and experts. And the final topic, the fifth topic, the Listening Exercise and correct commemorations.

In terms of the first topic I would like to start with some observations on scope, please, and at paragraphs 3 and 4 of our written submissions, we have made the observations that at the start of the pandemic the UK economy and the UK society had been subject to ten years of austerity and public sector cuts. In our submission, the core political and administrative decision making in relation to the pandemic cannot be properly examined without understanding the economic and political context within which they were made.

The Covid-19 pandemic revealed that due to austerity, public institutions and some households in the UK were in a vulnerable and weak financial position, which left them struggling to mitigate the immediate and devastating consequences of the pandemic.

We invite the Inquiry to examine the role and impact of austerity on political and Governmental decision making and the outcomes of such decision making particularly on vulnerable and at-risk groups.

The second observation I would like to make is in respect of structural racism. I have listened very carefully to what Mr Keith KC said this morning and I also had the benefit of listening to what was said by yourself, my Lady, and those participants who attended the Module 3 preliminary hearing yesterday.

The Inquiry has identified within the provisional scope of Module 2 that it will address the likely impact of the Government’s response, including measures such as non-pharmaceutical interventions, on at-risk and other groups, particularly in light of “existing inequalities”.

We note that structural discrimination and racism are a central and crucial example of such existing inequalities. The link between structural racism and racial and ethnic inequalities has been long recognised and continues to confront us in our daily lives in areas such as housing, access to healthcare and within the criminal justice system and places of detention. We therefore repeat our submission that the Inquiry should include an understanding of structural racism and discrimination in its examination of the key issues for Module 2.

We should say that it does that not only – by calling witnesses from the bereaved and other Core Participants and other groups whose experience of the pandemic were exacerbated by structural discrimination, as well as by obtaining relevant expert evidence. The Families were disappointed to hear counsel to the Inquiry from Module 3, Ms Carey KC, say yesterday, in the first preliminary hearing of that module, that structural racism is “obviously important matters within society today but …” far broader reach than the terms of reference for this Inquiry.” It has been said again that inequalities are at the forefront of minds, but including these matters is neither necessary or proportionate, although it may be a matter that the Chair wishes to keep under review as the Inquiry progresses.

We are grateful for your confirmation this morning, my Lady, that you’ve not made a decision in relation to the issue. However, the comments that were made yesterday do not give the Families the complete confidence that Mr Keith, counsel to the Inquiry for this module, asserts that he has that the underlying issues, the causation of those inequalities, will be addressed.

Inequalities may well be at the forefront of minds, but in our submission the Inquiry can only have a deep understanding of the impact that this devastating virus had upon our social body if it has a full understanding of our social body’s pre-existing conditions, our existing ailments, which we all must accept includes structural racism, which impacts the lives of millions of black, Asian and minority ethnic people within the United Kingdom.

We simply pose a logical question: how can the Inquiry understand inequalities without understanding the underlying social conditions which are likely to have led to those inequalities?

As my co-counsel, Ms Munroe KC, said to you yesterday on behalf of the Bereaved Families, my Lady, it exists. It is an uncomfortable truth that we must grapple with. Structural racism intersects and impacts on all modules of your Inquiry. It is a key underpinning reality in each module. In our submission the Inquiry can’t understand systems responses without understanding the underlying system itself and cannot ignore the reality of those systems.

Ms Munroe and Ms Gallagher KC pressed upon you yesterday on behalf of the TUC the need to understand the devastating figures regarding the disproportionate rate of deaths for black, Asian and minority ethnic men and women. We agree. But to understand what the inequalities were, you have to understand why they occurred.

As Mr Burton, King’s Counsel, highlighted yesterday in his submissions on behalf of the DDC and Mind, in his analysis of structural ableism, the causes of inequalities may be well known but not well understood. We agree that the Inquiry should seek to identify inequalities and their causation within the scope of the pandemic response.

We agree with Mr Thomas KC that this Inquiry must tackle the root causes head on in order for the Inquiry to fulfil its mandate and to restore trust. We agree that it would be a grave mistake for the Inquiry not to examine these root causes.

To be clear, my Lady, the Families are not asking you to conduct an inquiry into structural racism, they are asking the Inquiry to recognise the reality: it exists, and it existed prior to January 2020.

What we say is the Inquiry must understand what it is, how it operated and how it led to the pandemic having a disproportionate effect on black, Asian and minority ethnic communities. As with any area that is outside the expertise of an Inquiry, we say the only way to understand the position is through expert evidence.

We note the submissions made by Federation of Ethnic Minority Healthcare Organisations about the need for the Inquiry to understand how pre-existing health inequality occasioned by structural racism was understood by Government emergency planning and how this pre-existing health inequality would probably result in disproportionately adverse health outcomes within communities of colour.

We agree that it is an integral step in then identifying within Module 2 if there were any specific measures taken by the Government to address the disproportionate effect of Covid-19 on those communities beyond those applied to the general population.

Mr Dayle will no doubt develop these points with you later in this hearing, and we endorse what is said in their written submissions, but I wanted to add the point that his submissions on behalf of healthcare workers and those made by Mr Thomas KC yesterday also apply for the community more widely, and that our Bereaved Families urge you, my Lady, to consider the issue and the centrality of it to their experience.

We also note and agree with the written submissions made on behalf of Southall Black Sisters highlighting the intersectionality of structural inequalities where individuals share a number of protected characteristics.

My Lady, we entirely appreciate the depth and breadth of the Inquiry’s task in Module 2 and press the point because, in our view, it is a foundational issue that can only assist the Inquiry’s understanding of the key issues.

I will now turn to my second topic addressing the issues of start date and timetabling. In respect of the start date, the Bereaved Families accept that it was inevitable that the Module 1 timetable would change, which of course would have an impact on the Module 2 timetable. We welcome the pragmatic proposals regarding a new start date and a further preliminary hearing.

We agree with the proposals that there should be a second, third and fourth preliminary hearing in the summer and then in September of this year, given the proposed start date of 2 October. We do see the merit of there being two further hearings to ensure things remain on track. The concern we raise is about the hearing length. Without a clearer sense of the witness list and list of issues it is not possible for us at this stage to provide any alternative proposal, but we would be assisted by further clarity regarding timetabling to allow us to make practical and helpful proposals to you my Lady.

I will then turn to my third topic, Rule 9 and disclosure. In respect of the Rule 9 requests, Mr Weatherby, King’s Counsel, has made our position clear in previous detailed oral and written submissions, and we renew our request for disclosure of the Rule 9 requests and press upon you our previous submissions.

With the reports in today’s press regarding leaked WhatsApp messages from the former Health Secretary, Mr Hancock, the Families more than ever need to have a full understanding of what’s been requested from whom, and therefore have the ability to contribute our assistance in identifying gaps in disclosure.

The Families deserve to be in the Inquiry’s circle of trust. They do not deserve to be left reeling from media revelations regarding documentation that, I’m sure your team will agree, is clearly within the Inquiry’s scope.

We are pleased to hear counsel to the Inquiry’s request this morning that others with relevant evidence to give do so, and quickly, but we expect this request to be followed by further Rule 9 requests where these individuals are known.

We note that our submissions find support in those made on behalf of FEMHO. We agree with their practical observations that the disclosure of the Rule 9 requests won’t create an additional layer of work for the Inquiry – we understand they have enough to do – and that we remain committed and focused on identifying gaps. We agree that unless it is done, it is likely that identification will happen at a time too close to the hearings, leaving little opportunity for matters to be addressed, which can only be to the deficit of the equality of the investigation.

We have raised specific questions in paragraphs 18(a) to (e) of our written submissions, and asked for a list of organisations and bodies to which the Rule 9 requests have been issued, and are grateful for the further detail to be provided to counsel to the Inquiry this morning.

We made a specific observation regarding groups representing people in custodial settings and places of detention. Mr Keith this morning has indicated this is likely to be an issue for consideration in another module. We maintain it is relevant to Module 2 and would appreciate further clarity on the Inquiry’s thinking on this particular topic.

I then turn to my fourth and penultimate topic, evidence and experts. Touching first on disclosure and redactions, which we have addressed at paragraph 20 of our written submissions.

Our concerns are about the Inquiry’s legal team’s broad approach to redactions which, in our submission, will impede our rapid scrutiny of the material, given the fast pace that we must all adapt to between now and the commencement of the oral hearing dates.

We are concerned that any delays in disclosure will hinder our ability to identify legitimate lines of Inquiry and adversely affect our Families’ effective by participation in the Inquiry. So we repeat our submissions from Modules 1 and 3 that there are practical ways outside of the broad and time-consuming application of redactions to ensure that Core Participants receive full and efficient disclosure whilst preventing the names of those not directly involved in decision making entry into the public domain.

We have documents disclosed to us within an undertaking, and we and the Families are required and will maintain confidentiality, no matter how difficult. Our practical suggestion is to speed up disclosure, and it is easier and more sensible to do that redaction process if and when a document needs to enter into the public domain.

Moving then to the disclosure platform. At paragraph 21 of our submissions we renew our concerns about the current disclosure platform and we echo the request made by the children’s rights organisations in their written submissions that a note be circulated on the issue of functionality of Relativity and that practical conversations continue between CPs and the Inquiry legal team.

Members of our team, my Lady, have worked with Relativity for over ten years and are aware of its potential functionality and its limitations, but we submit there are seven commonsense aspects of its functionality which can be enabled to make the work of the Inquiry and the Core Participants easier and more cost efficient.

On a short and important point, we now have over 30,000 pages of disclosure for Module 2. This will increase, as Mr Keith said, exponentially over the coming days, weeks and months, and our team of counsel and solicitors will work tirelessly and at pace, as we know your team will, to prepare for the oral hearings, and this task is not underestimated.

We note and support the submissions made in respect of funding by the TUC, who will undoubtedly play an important role in this and other modules. We know of a similar position in regards of funding in respect of Solace Women’s Aid and also support their submissions. We agree without proper funding being made available to all non-state Core Participants the already daunting task of preparing for the Module 2 hearings becomes an impossible task, and the Inquiry risks losing the voices of key bodies that represent millions of people affected by the pandemic.

I will next touch on Parliamentary privilege. We won’t repeat our detailed arguments from Module 1 and we welcome your indication, my Lady, that you will keep the matter under review. We do submit that this should be approached in an organised and timetabled way as it will inevitably be a live issue in Module 2 given the issues that it will examine. If it’s not approached in an organised way, the Inquiry and the Core Participants will be left to deal with it in an ad hoc piecemeal way, probably shortly before the oral hearings are due to commence which can only be exploited by witnesses who may be reluctant to engage with the full scrutiny of the Inquiry and who may choose instead to hide behind a reliance on Parliamentary privilege.

One can think of examples of Parliamentarians who, when faced with statements made outside of Parliament or on WhatsApp messages which conflict with what was said within Parliament, may decline to repeat in a witness statement what they did state on the record in Parliament and claim that there is no requirement that they do so, using Parliamentary privilege as the justification. This is likely to be a live issue and soon. That is why we say the issue must be resolved now.

I will move then to the instruction of expert witnesses. Touching again on our submissions about the need for expert evidence on the issue of structural racism, we repeat our submissions about the need for the Inquiry to have the assistance of expert evidence to provide the foundation of understanding necessary to analyse the disproportionate impact of the pandemic response.

We welcome the instruction by the Inquiry of the experts they have identified for Module 1, Sir Michael Marmot and Clare Bambra, on health inequalities but note, as we did in our submissions for that module, that neither of these experts have an expertise in structural racism; so repeat that there remains a lacuna in the expert evidence that would assist the Inquiry.

In respect of the letters of instruction, we set out in paragraph 27 of our written submissions our clear position. We continue to see no reason why they are being withheld from Core Participants. Having them now would allow us to prepare for the provision of comments to the Inquiry and do so in a way that is most effective and constructive to their task.

It has been said this morning that we will be able to evaluate the draft reports. Well, of course we can. We can only really evaluate the draft reports in relation to the sufficiency to which they meet the requirements of the letter of instruction.

May I move then, my Lady, next to dealing with evidence proposals and the Rule 10 procedure.

Counsel to the Inquiry have accepted that this Inquiry will follow the normal run of events and that Core Participants can apply to question witnesses under rule 10(4). We reiterate that the only meaningful way to provide for the effective participation of the bereaved families is for the Chair to exercise her discretion in favour of allowing Core Participants to ask their own questions of witnesses. As Ms Munroe said yesterday in the Module 3 hearing, it is essential the bereaved families have confidence in the Inquiry.

There is a significant benefit to having a diversity of questioners with a diverse area of expertise, representing a diverse range of real individuals with diverse lived experiences. It is those lived experiences, my Lady, of the bereaved families, their nuances and their complexities which infuse everything that we, as counsel and solicitors for Covid Bereaved Families for Justice and Northern Ireland Covid Bereaved Families for Justice, do on their behalf. In our submission, in order for the bereaved to be at the heart of this Inquiry, their voices must be heard not just in the evidence they can give but in the questions that they can ask.

To be clear, my Lady, our questions to the Inquiry will be focused and relevant and will always be intended to assist your Inquiry, not elongate it nor divert it on irrelevant tangents. We are a counsel team with a depth and breadth of experience in public inquiries and know from that experience that it is perfectly possible for a sensible and collaborative relationship to be established between counsel to the Inquiry and representatives, which includes a formal process and a dialogue about lines of questioning, but which also enables representatives to ask those questions of witnesses directly within the structure of the Rule 10 process and your own case management guidance.

Mr Keith this morning has said that Core Participants may be permitted to meet counsel to the Inquiry and can, to use his words, return to the fray and argue the points with CTI as to the topics that they say is relevant to the Inquiry’s scope. He’s also reiterated that all Core Participants can apply to you for permission under Rule 10(4)(4) to ask questions themselves. The families trust that this is a recognition that the topics can be the subject of formal and informal process and dialogue but that you, my Lady, will be unfettered in exercising your discretion in permitting Core Participants’ permission under Rule 10(4) in the usual way.

I’ll turn then to my fifth and final topic and make some short points about the Listening Exercise and commemorations. In respect of the Listening Exercise, the matters raised in our Modules 1, 2 and 3 submissions reflect the strength of feeling of the bereaved families in relation to the Listening Exercise. We welcome the Chair’s ruling that the consideration will be given to ways in which the Inquiry’s communication with our families will be improved, and we welcome the endorsement this morning of a trauma-informed approach, which of course is significant when listening to the lived experience of the bereaved.

I repeat and endorse the submissions made by Mr Weatherby on 14 February in the Module 1 pre-hearing. The families need transparency on conflicts of interest in respect of those being appointed, and being considered for appointment, for the delivery of the Listening Exercise, including the criteria the Inquiry is applying to such conflicts, if any, and how such conflicts are being considered.

Consideration of those conflicts of interest should also include perception of such conflicts given the trauma involved in bereaved family members assisting this process. Mr Keith’s provision of further details, involving the use of 23red this morning, is the detailed information that the families require of all the contractors and subcontractors so that they can decide whether they perceive the existence of a conflict. The fact that 23red dealt with Government communications and messaging doesn’t in the view of the bereaved families remove any conflict, given the issue of Government messaging is within the scope of Module 2 of this Inquiry.

We note the written submissions on behalf of disabled people’s organisations, which also request the Inquiry to adopt a robust and transparent approach, clarifying who has been appointed to carry out the work of the Listening Exercise and how any conflict issues have been resolved.

In terms of the practicalities of the exercise itself, we listened carefully to your Module 3 opening remarks yesterday, my Lady, and this morning, and we welcome the further information indicated in this week’s newsletter and the forthcoming webinar.

Finally then, my Lady, on the commemorations. We welcome the Inquiry’s continued work around the commemorations and the bereaved families remain committed to assisting you with that task. We welcome your team’s approach to the families to discuss the establishment of a meaningful and long-lasting commemorative programme. On this, and all other matters, my Lady, we will continue to assist your Inquiry and your team.

Unless I can assist you further, my Lady, those are my submissions.

Baroness Hallett: Thank you very much indeed, Ms Morris. Extremely helpful and, as you have acknowledged, I have not made a decision on some of the important aspects of your submissions and obviously, as soon as I have made a decision, I will let you all know with my reasons. So thank you very much indeed.

I think it is now Ms Campbell.

Ms Campbell: My Lady, yes. I hope you can hear me and see me.

Baroness Hallett: I can do both. Thank you, Ms Campbell.

Submissions by Ms Campbell

Ms Campbell: My Lady, may I start by saying I’m grateful to Ms Morris this morning. The power of her submissions will not be improved by my repetition of them and your Ladyship knows well that on behalf of the Northern Irish bereaved families we are working closely with the UK family team, as well as indeed many other Core Participants, so as to identify areas of common concern and to strengthen the voices of those whom we represent and to bring to the fore the issues of importance to them.

We hope that that approach also really reinforces our commitment to ensuring that you meet your objective to balance depth and detail of your Inquiry, the efficacy of the Inquiry and of your investigation against the time available and, of course, the passage of time. However, we are always alert to the risk that the issues that are unique to Northern Ireland, and therefore don’t attract that distinct and adequate focus, not for the first time I will say and I know not for the first time, my Lady, you will hear that Northern Ireland is in a unique position both geographically and politically. And it is in this module, focusing on central Government decision-making, that that concern about a possible failure to consider the unique position of Northern Ireland is perhaps at its highest.

Did the UK Government adequately and fully consider the unique impact of the pandemic on the population of Northern Ireland, and did decision-making at a central Government level reflect our unique position? Those are questions that cause a great many members of the bereaved families whom we represent concern. It is for that reason that at paragraphs 8 to 11 of our joint submissions we raise queries also as to the extent of your team’s consideration of our unique position. I know that my Lady has reassured us, as has your counsel team in the past, that those issues are under detailed consideration.

We have heard this morning Mr Keith’s response to some of the issues that we raised and, of course, it is useful to know that Northern Ireland specific questions have been raised and Rule 9 requests been sent to ministers such as Michael Gove, being one example. But we do note, however, that neither of the two members of Parliament who held the role of Northern Ireland Secretary of State appear to have been approached for their input via the Rule 9 process and we raise that as an issue of consideration, particularly important, it might be thought, given the lack of a functioning executive in the north at times.

We note also that it appears that relevant counterparts in the Irish Government, certainly don’t appear to have been approached or asked for such assistance that they might be in a position to give. I say “it doesn’t appear to” because of course we are working from the information that your team has very helpfully given in the note ahead of this module.

If this module is really to identify lessons learned and issues that need further consideration to ensure that the suffering of the people of Northern Ireland is lessened in any future pandemic, it is going to be imperative that those central Government decisions and consideration of cross-border, cross-country and cross-Governmental issues are tackled and we therefore urge, both in writing and today orally, that your team commence that process now.

As I said, my Lady, it is useful to learn today that there is detail in Rule 9 requests that focus on particular agencies asking questions about Northern Irish specific issues. But learning that today perhaps illustrates another concern that our membership has and that is one of disclosure and, indeed, transparency.

You will be acutely aware, my Lady, that for many, if not all, of those who have lost family members and who firmly believe that the deaths were avoidable, confidence in central Government decision-making has been damaged, if not in some cases completely broken.

Of course, this Inquiry has an important function in rebuilding aspects of that public confidence. There are, we contend, building blocks that can be put in place now. My Lady has heard this morning from Ms Morris, and indeed at previous preliminary hearings, these requests that I now echo: firstly, transparency in the evidence-gathering process; disclosure of the detail of Rule 9 requests; from a Northern Irish perspective, at least disclosure of those questions that have been asked of ministers or agencies that focus in particular on Northern Ireland and not simply, although we are grateful for it, an update in a preliminary hearing.

Linked to that, transparency also in the disclosure process itself and timely disclosure. My Lady has heard that before and I won’t repeat it but, of course, the fact that the hearing dates have moved back to the autumn should not allow for any slippage in terms of timely disclosure to the families. We have, as has your team, an enormous amount of work to do.

The other building block is ensuring that the voices of the bereaved and the families whom we represent are heard. My Lady, we don’t underestimate for a single moment the enormity of the task that you have and the enormity of the task that the Inquiry team faces, nor do we underestimate the diligence with which they approach their tasks. We understand and appreciate that. But we do reiterate the submissions of this morning, and those made in earlier preliminary hearings, that clarity of process and equality of access are of fundamental importance. Rule 10 requests perhaps illustrate this most vividly.

We will of course work with any procedure that you put in place in terms of written questions and in terms of the opportunity to liaise with your team to identify areas of questioning. But it is our submission that your Inquiry will be the poorer if the voices of those who were most gravely impacted by the pandemic are not heard through the questions that are asked on their behalf by those who closely represent them. My Lady, I know that the Inquiry’s approach to this issue remains open, and I raise it this morning simply to reinforce once again just how important it is likely to be going forward to ensure that the Northern Ireland bereaved families feel that their voices are being heard as part of your Inquiry.

Thank you.

Baroness Hallett: Thank you very much indeed, Ms Campbell. You ask some important questions. I will do my best to discover the answers to them. I’m afraid I don’t know off the top of my head who has been approached by Rule 9 requests, other than what Mr Keith told us earlier, but we will find out. Obviously today’s focus was 2 rather than 2C but we can make sure that the information is available. So thank you very much indeed.

Ms Campbell: Thank you.

Baroness Hallett: If we could turn, please, to Mr McCaffrey.

Mr McCaffrey: Good morning, my Lady.

Baroness Hallett: Good morning, Mr McCaffrey.

Submission by MR McCAFFREY

Mr McCaffrey: Kevin McCaffrey and I appear before your Ladyship today in lieu of Ms Mitchell, King’s Counsel, and on behalf of Scottish Covid Bereaved instructed by Aamer Anwar & Company Solicitors. Your Ladyship does of course already have our brief written submissions. However, I would wish to add, equally briefly I hope today, to those written submissions.

Firstly, we welcome your Ladyship’s introductory remarks with regard to your aim and indeed intention to conclude this Inquiry as soon as possible. We also understand this will necessarily take considerable time, despite your Ladyship’s stated aim and in order to do justice to all those affected by the pandemic.

The families comprising Scottish Covid Bereaved we represent at both the Scottish and UK public Inquiries were advised that they could be waiting several years before proceedings are concluded, and to place their faith in the ability of both Inquiries to deliver a robust Inquiry that will provide answers and enable lessons to be learned on the handling of the pandemic. Your Ladyship’s decision to produce interim reports and recommendations is particularly welcome in these circumstances.

Your Ladyship is obviously aware of, and has already been referred to, the news last night that over 100,000 WhatsApp messages of the former health secretary, Matt Hancock, containing over 2.3 million words were leaked to the press. It will be unlikely to come as any surprise to your Ladyship of how shocked the members of Scottish Covid Bereaved were to learn of this. If what it appears is contained within those texts is correct, then it would demonstrate that ministers of state at the highest level were making critical decisions on matters of the utmost severity via WhatsApp. Undoubtedly, ministers would know that such messages cannot be requested by freedom of information requests.

Some of the allegations contained in the press are who deeply horrifying and upsetting for the families we represent. Foe example, some of those allegations claim that testing of those discharged to care homes, despite strong advice to do so by the Chief Medical Officer, it appears was ignored on the basis of meeting testing targets. If true, we submit that revelation alone goes to the heart of the stated aims of Module 2 as contained in paragraph 2 of the provisional outline of scope.

We are aware that many lawyers have been going through the process of redacting names from tens of thousands of pages of recovered documents as is normal in public inquiries. While we, as representatives of our clients and Core Participants to the Inquiry, must sign undertaking to protect the confidentiality of all Government disclosure, the impression from last night’s revelations is that the former health secretary had provided the entire contents of over 100,000 of his messages that contained critical decision-making detail during the pandemic to his biographer. It appears to us that the Prime Minister, former Prime Minister, cabinet ministers, chief medical officers and senior civil servants are likely to have been engaging in the to and fro of these messages.

We submit that anything less from Mr Hancock would, for the bereaved families, significantly damage the integrity of both the UK and Scottish public inquiries and that is to release all of these texts to the Inquiry on demand. It appears clear from last night’s revelations that the Cabinet Office were privy to this material released by Mr Hancock to his biographer, and that they had the right to veto such disclosure. Therefore, the question we are bound to ask is whether such crucial material has, in fact, been released to the Public Inquiry without redaction?

It would, as we are sure your Ladyship will understand, be deeply insulting to the families if they have to read redacted material whilst the same material was being leaked in full on a daily basis through the media.

In the prologue to his pandemic diaries, Mr Hancock claims he disclosed all his records to this UK Covid Inquiry. As a result, those instructing Aamer Anwar & Company seek the Inquiry legal team’s clarification as to whether those texts have indeed been fully disclosed and, if they have not, that the Inquiry would now direct immediate and full disclosure.

While it is trite to observe, we submit that no individual, no matter their current or previous office, can be allowed to interfere with the pursuit of all of the facts that this Inquiry is intent on achieving.

To turn to the Inquiry dates, my Lady. Scottish Bereaved are grateful for the update from the Inquiry legal team on Rule 9 letters of disclosure in relation to Module 2 and we note that, as a result of the postponement of Module 1, Module 2 will now take place from 2nd October 2023 until 7th December 2023, although we note these dates are still provisional in line with the comments made by counsel to the Inquiry earlier.

Your Ladyship already has our submissions on Parliamentary privilege and it is not necessary to repeat them here today. However, we accept that …

Baroness Hallett: I don’t know if you can hear me, Mr McCaffrey, but your screen is frozen.

Mr Keith: My Lady, we appear to have lost him. I wonder whether you want to consider electronically rising. Oh no, we’re back.

Mr McCaffrey: I do apologise. Hello, my Lady. I hope you can hear me now.

Baroness Hallett: We can, thank you, Mr McCaffrey.

Mr McCaffrey: Sorry, just a glitch in my internet connection.

I think I had got just to the Inquiry dates, my Lady, and I hope you heard what I had to say before that.

Baroness Hallett: Yes and you had then moved to Parliamentary privilege.

Mr McCaffrey: I’m obliged, my Lady.

As I said, my Lady, your Ladyship already has our submissions on Parliamentary privilege and it is not necessary to repeat those here today.

However, we do accept that the disclosure of Rule 9 requests has been covered in the submissions of many of the Core Participants and we do not wish to rehearse that either. But we would note that if the Rule 9 requests were to be disclosed to Core Participants, then this would obviously provide some way of assurance to the families of Scottish Covid Bereaved, and others of course, of exactly what has been requested.

We are obliged to counsel to the Inquiry for suggesting that the informal process which we proposed in Module 1 to consult with counsel to the Inquiry before invoking Rule 10(4) is to be included in the present module.

We believe that such an informal process will be likely to obviate the need for matters to be put before the Chair in that module and would ask that the Chair endorse this suggestion. Again, CTI’s comments today are noted and we will refer to any further clarification on that point that we may seek.

We note that in Module 2 the Inquiry will look into core political and administrative governance and decision-making for the whole of the UK, which we submit is directly relevant to the revelations of last night in connection with the WhatsApp messages being disclosed and already referred to. Module 2A will of course look at matters from a Scottish perspective and we now have had the opportunity to read the memorandum of understanding agreed between your Ladyship and the Scottish Inquiry Chair, Lord Brailsford, in relation to the conduct of the Scottish and UK Inquiries which was made available to us on 23 February.

We note that both Inquiries commit to providing clarity about how each will discharge its terms of reference, minimising duplication and maximising value to the public purse, and that the practical steps necessary are being put in place to achieve those ends.

Scottish Covid Bereaved ask that we will be updated in respect of any substantive decisions that are taken in the way that the Inquiries intend to interact, including the way in which evidence and documents will be shared. We again appreciate counsel to the Inquiry’s comments in that regard this morning.

We note from counsel to the Inquiry this morning a request for a statement and materials associated therewith has been made to the First Minister of Scotland. As referred to by Ms Campbell of Northern Ireland Covid Bereaved Families for Justice, we trust that further requests will be sent to those other ministers in the Scottish Cabinet and their advisers in due course. However, we also accept that this is perhaps a decision that will be taken with reference to and in conjunction with the Scottish Inquiry and included in Module 2A of the UK Inquiry.

We further acknowledge and appreciate the clarifications of your Ladyship and counsel to the Inquiry this morning as to the proposed newsletter and webinar which will provide further detail of how the Every Story Matters Listening project is to be progressed. Also to counsel to the Inquiry for addressing the perceived issues surrounding those companies which may be involved in the operation of that exercise.

Again, and as previously submitted, members of Scottish Covid Bereaved will have suggestions on how this might be best achieved and welcome the opportunity to attribute to the process.

We are also grateful to the Inquiry for reflecting our earlier request and indicating its intention to minimise the impact on those who wish to participate in both listening projects. We understand that our previously voiced concerns that the UK and Scottish Inquiries will not sit at the same time have been accepted, and for Scottish Covid Bereaved that is an important matter as clearly the group has a significant interest in both Inquiries. However, it does not appear that this has been specifically addressed in the terms of the memorandum of understanding and Scottish Covid Bereaved would welcome clarification on that point.

We note that both Inquiries will give consideration to incorporating findings or recommendations made by one Inquiry into the evidence of the other to the extent that such has been arrived at by the time required for the purposes of the other Inquiry. This will enable us better to understand what is proposed. Clearly, each of the Inquiries are separate and requires to carry out its own investigations. While we acknowledge that with co-operation between the two Inquiries (which we hope will be time, effort and cost saving,) Scottish Covid Bereaved will welcome the assurance that each Inquiry will be properly independent when it comes to the assessment of the evidence before it.

Further, and in line with our position in submissions for Module 3 yesterday, we once again acknowledge and adopt the submissions of those other Core Participants with regard to the specific issues arising in relation to structural racism and ethnicity. We welcome both your Ladyship’s and counsel to the Inquiry’s comments in these regards this morning.

Unless I can be of any further assistance, your Ladyship, those are the submissions on behalf of Scottish Covid Bereaved.

Baroness Hallett: Thank you very much indeed, Mr McCaffrey. In relation to the Scottish Inquiry, as you know, I explained how Lord Brailsford and I and our two teams have been working closely together, but I can assure you, and I’m sure you would accept (Lord Brailsford is still a serving judge in Scotland and I was a judge for a long time) nobody is going to interfere with our independence. So I can assure you we will be firmly independent, both of us, in our different Inquiries.

As far as the other important matters you raise are concerned, I can only imagine the impact on the bereaved seeing the WhatsApp messages disclosed without any kind of notice. As you know, it had nothing to do with this Inquiry. But what I can do is assure the bereaved that this Inquiry will make every possible effort to ensure that we have investigated all the messages and their context before we complete any kind of examination of the role of the previous Secretary of State for Health.

So we will also check the question you asked about whether all Mr Hancock’s records have been disclosed. I think that probably covers most of the matters I can deal with today but, if there are other matters, we will get back to you with answers as soon as we can.

Thank you very much. Thank you, Mr McCaffrey.

It is now Mr Williams. Mr Williams, you are there. Have you been having problems this morning?

Mr Williams: I have, my Lady. I understand that I owe you and the audience an apology for trying to intervene in proceedings when I’d somehow cut myself off from the proceedings themselves.

Baroness Hallett: Don’t worry, Mr Williams. These things happen to all of us and, as you know, I had to apologise for a coughing fit. So don’t worry.

Mr Williams: Well, my Lady, I’m just sorry that I had to reveal my incompetence with computers so early in these proceedings. I was hoping it might come somewhere towards the end.

Submission by Mr Williams, KC

Mr Williams: My Lady, I have introduced myself many times in these proceedings. I will just say I’m Lloyd Williams. I represent Covid-19 Bereaved Families for Justice Cymru. I’m going to try and avoid previous matters upon which I have commented and, insofar as is necessary, I adopt what’s been said before me this morning and, once again, I’ll try and avoid repeating it.

My Lady, I want to address you on the following matters: scope of issues to be covered in Module 2; Rule 9 requests; disclosure; expert witnesses; evidence proposals; procedure and Rule 10; and Every Story Matters and commemoration. You will no doubt be pleased to know that my comments in respect of all those headings are relatively short but there are matters that concern those we represent.

First of all, scope and issues. CBFFJ Cymru notes that the CTI proposes that a list of key witnesses who fall to be explored in the oral evidence of Module 2 will be circulated in April 2023. It is noted that it is intended that this is to be done taking into account the aim of ensuring broad consistency of approach with modules 2A, 2B and 2C. CBFFJ Cymru agrees that considerations to the scope and compilation of the list of issues in Module 2 requires consideration of the four modules to ensure that key issues will be adequately covered, in particular, as to the communications between Governments and in order to ensure consistent approach.

CBFFJ Cymru notes that Module 2 includes in its provisional scope the following. Central Government structures and bodies concerned with the UK response to the pandemic, and their relationship and communications with the devolved administrations in Scotland, Wales and Northern Ireland and also regional and local authorities.

My Lady, CBFFJ Cymru submits that it would be important that the list of issues in Module 2 includes the following matters which fall within the above paragraph of provisional scope.

Firstly, to what extent was there a sharing of knowledge between Welsh and UK Governments? In particular scientific, medical and expert knowledge? Why did the actions taken or not taken by the Welsh Government differ from those taken by the UK Government or any of the other devolved Governments? The relationship of communication between the Welsh and UK Governments before and after January 2020 in relation to pandemic planning and response, including the frequency and quality of meetings. This should include requests made by the Welsh Government to the UK Government for additional funding and the efforts made to secure the same.

CBFFJ Cymru submits that the list of issues to be examined should also include: (a) whether any senior ministers considered or attempted to use the emergency powers contained within section 1 of the Civil Contingency Act 2004 to make emergency regulations.

  1. if no consideration was given to those powers why not?

  2. whether it was necessary to use these emergency powers to protect life, or whether the Government was right to wait for the Coronavirus Act 2020 to go through Parliament via the normal route. In going through Parliament via the normal route whether any time was lost that might have been saved by using the powers already contained within the Civil Contingencies Act 2004 and, if so, in what way do they matter and the effect of that?

  3. whether the enactment of the 2020 Act impacted on the extent to which the devolved nations made their own decisions about emergency powers.

Further, my Lady, CBFFJ Cymru adopts and supports the proposal that was made at the first preliminary hearing in relation to Module 2 on behalf of the TUC that a short hearing be listed after the hearings of modules of 2A, 2B and 2C to take account of the lessons learnt from those modules in which it would be open to Core Participants from Module 2 to make submissions on Module 2 with the benefit of reflecting on the evidence from all four modules. CBFFJ Cymru agrees this is likely to assist the Chair and the Inquiry in their work.

Rule 9 requests. CBFFJ Cymru welcomes the opportunity to indicate where it considers that an individual who does not appear in annex A but whose evidence would benefit Module 2 to be heard. It proposes that, if not already served, consideration of service of a Rule 9 request on the Director General of Covid-19 Crisis Co-ordination for the Welsh Government should be served and, if necessary, should be called to give evidence.

Disclosure to Core Participants. CBFFJ Cymru is grateful for the updating information as to the progress of disclosure CPs. CBFFJ Cymru requests that when a new tranche of disclosure is uploaded onto the database that an email is sent to CPs and their legal representatives to notify them. This has been the case for Module 1. Without such notification, it is difficult to know when new documents have been received and uploaded.

Expert witnesses. CBFFJ Cymru is grateful for the information about the sharing of draft expert reports with the CPs and welcomes the opportunity to raise points of clarification or additional information of relevant matters with each expert. CBFFJ Cymru looks forward to receiving further information as to how CPs can engage in this proceedings. It requests, my Lady, that there is sufficient time for CPs to give consideration to the draft reports before the time by which questions/new matters are to be raised.

My Lady, turning now to evidence proposed procedure and Rule 10. CBFFJ Cymru notes and welcomes the CTI’s support for additional procedure referred to in paragraphs 47 and 48 of its note that CPs may be permitted to meet counsel to the Inquiry following the submission of their observations on the evidence proposal which is to be provided in respect of each witness to be called to give evidence, and so as to give the chance to better explain the rationale for the observations, an informal route to highlight the importance of the issues and why they then need to be raised with the witness.

CBFFJ Cymru suggest that in line with other public inquiries, there ought also to be a short period of time set aside after the CTI’s questions so that further follow-up questions arising from the evidence can be considered by the CPs.

Finally, my Lady, in respect of Every Story Matters and commemoration, CBFFJ Cymru is grateful to the solicitor to the Inquiry for the update as to both those matters and very much welcomes the work to be done in both areas, and the opportunity to continue working with the Inquiry team to assist in the development of Every Story Matters.

My Lady, those are my submissions.

Baroness Hallett: Thank you very much, Mr Williams, as constructive as ever. You’ve raised some interesting questions and made some interesting points and I’m sure that counsel to the Inquiry team are very much making a note of them. So thank you again.

I’m sorry about your problems earlier. Don’t blame yourself. These things happen to everybody including, on one call I did, a professor of computer science. So it can happen to everybody. Thank you very much indeed. We will break now for lunch and return at 2.00, please.

(1.00 pm)

(The luncheon adjournment)

(2.00 pm)

Baroness Hallett: Right, I think it is now an opportunity for Mr Metzer to address the Inquiry.

Mr Metzer: Thank you, my Lady.

Submission by Mr Metzer

Mr Metzer: My Lady, I appear on behalf of the Long Covid groups, together with my learned friends Ms Sivakumaran and Ms Iengar. We are instructed by Bhatt Murphy Solicitors, as you are aware.

We were grateful to Mr Keith KC and his team for the clear indications in respect of the timetable and the plan for the way forward for Module 2 set out in his notes and oral submissions today. The assistance provided by Mr Keith KC and his team have obviated the need for detailed submissions from Long Covid groups today, and I have therefore focused only on a few matters of detail.

Long Covid and their interest in Module 2. Before turning to our submissions on procedural matters, we have two preliminary observations. Considering first the history of advocacy for recognition for Long Covid, you will recall at the first preliminary hearing the submissions advanced on behalf of the Long Covid groups setting out their concerns about being overlooked by Government decision makers and their formation to advocate for those with Long Covid. You will also recall that I addressed you on these issues yesterday as they related to the healthcare consequences of how the government and the public responded to the pandemic.

As I also mentioned yesterday, it has been suggested that “Long Covid is the first illness to be made through patients finding one another on Twitter and other social media”. The etymology of the term “Long Covid” can be traced to social media posts in May and June 2020. Patient advocacy has played an integral part in the recognition of and response to Long Covid.

You will be aware of the Long Covid groups’ advocacy for better recognition for and understanding of Long Covid, as set out in their responses to the Rule 9 questionnaires, and there is evidence and examples in our written note. Their interest in participating in this module is derived from their experience and concerns that the administrative and Government decision makers failed to have regard to Long Covid when making decisions in relation to the Covid-19 pandemic.

Long-term sequelae from Coronavirus infections and other infectious decisions were not unknown before Covid-19, and yet there was neither urgency in planning to respond to long-term sequelae for Covid-19 nor in responding to reports of Long Covid when they arose in summer 2020. It was left to people with Long Covid to advocate on their own behalf. The experience of those living with Long Covid and advocating for its recognition was a crucial element to the narrative of the administration and Government decision making on Covid-19.

There is a novel and important opportunity for the Inquiry and the wider community to learn from the experiences of patient advocacy groups in a pandemic in relation to the long-term sequelae of infectious diseases. The lessons to be learned from the Long Covid’s groups’ experiences during the Covid-19 pandemic will have relevance to any Government decision making in response to a future epidemic or pandemic.

Secondly, we endorse the calls from other Core Participants to the Inquiry to consider structural discrimination and racism across all modules of the Inquiry, including Module 2. As Mr Keith highlighted this morning, Covid-19 has had a disproportionate impact on different ethnic groups and disabled people. The statistics speak for themselves. We welcome the Inquiry’s commitment to investigate inequalities as set out by Mr Keith this morning. However, inequalities cannot be fully understood without fully considering structural and systemic factors driving those inequalities. To put it in common parlance, there is a risk of not seeing the wood from the trees. We do not seek to repeat submissions which have already been made on this matter but would strongly encourage the Inquiry to consider this issue with an open mind.

With these provisional observations in mind, I wish to briefly address some of the procedural matters. We have made detailed submissions in our written notes and I do not intend to repeat those submissions now unless there are any matters on which you would require further submission.

Witness list timetable and Rule 9 process. The Long Covid groups have raised the Rule 9 process with the issues of witness lists and timetabling, as they are interlinked. The Long Covid group support Mr Keith’s helpful commitment to providing a list of issues in April 2023 and to sharing a provisional list of witnesses shortly thereafter, in recognition that Core Participants’ early observations will assist the chair and her team.

In relation to timetabling, we note Mr Keith’s proposal for a further preliminary hearing to be held before September 2023 and possibly in July, following submissions from other Core Participants. We strongly support the suggestion that the preliminary hearing be scheduled considerably earlier and no later than the summer break, in order to iron out any outstanding issues and ensure the revised start date of October is wholly achievable.

In respect of the Rule 9 process, the Long Covid groups have sought greater clarity about the Rule 9 process in order to ensure effective assistance to the Inquiry. We are grateful for the indication from Mr Keith that the Inquiry is considering the Long Covid groups’ responses to questionnaires and whether to send a further request for a witness statement. We would be assisted if the Inquiry was able to provide an earlier indication as to whether Long Covid groups are likely to receive a further request for substantive witness statements.

The Long Covid groups note the Inquiry’s approach to evidence gathering through initial questionnaires issued pursuant to Rule 9, and welcome the indication from Mr Keith that relevant witnesses are now being asked about whether they took into account the risk of Long Covid when considering NPIs.

Although we are concerned that this was not considered earlier, the early disclosure of the list of issues will help identify if there are any other key areas related to Long Covid that the Inquiry has overlooked. We underscore that the Government and administrative decision maker’s perspective provides only one facet of the context in which decisions were made. The experiences of those living with Long Covid and advocating for its recognition provides a crucial element to the narrative of administrative and Government decision-making on Covid-19. They respectfully suggest and urge that it is necessary to hear further evidence from Long Covid groups to provide a complete picture of events from Module 2.

The Long Covid groups make these early observations in advance of any draft witness list in order that they can fully understand the Inquiry’s approach to evidence gathering whilst there is an opportunity to substantively assist the Inquiry. As Mr Keith observed, the Inquiry is moving at great pace, and they would welcome an early opportunity to assist the Inquiry with a provision of further evidence.

Experts. In relation to experts, the Long Covid groups have three core observations. First, the Long Covid groups welcome the indication that draft reports for the four experts in Module 2 will be shared in March 2023. They appreciate that the Inquiry team has been working at pace and that this early disclosure of reports is evidence of considerable effort on the part of the Inquiry to be prepared for the Module 2 hearings. The Long Covid groups also anticipate contributing a limited number of observations to the draft reports when they are disclosed.

Secondly, the Long Covid groups will be assisted by the early formal disclosure of Module 1 reports which relate to Module 2. We welcome those parts of the reports of the experts related to health inequalities in Module 1, Professor Marmot and Professor Bambra being considered for disclosure in this module. It is necessary for Core Participants who are not in Module 1, including our clients, to understand the opinions of the experts opining on preparedness and on what should have been in place at the time of the pandemic to understand the quality of the decisions then subject to review in Module 2.

It is respectfully requested that all the Module 1 expert reports be disclosed to Core Participants in Module 2 in full and at an early stage. While the reports will, as Mr Keith reminded us this morning, be published at the time of the Module 1 hearing, given the pace the Inquiry is progressing at, Core Participants in Module 2 would be considerably assisted by understanding the expert views in relation to Module 1 as they pertain to Module 2 in good time to advance preparation for Module 2.

Finally, the Long Covid groups recognise Mr Keith’s recognition that multiple epidemiologists will called in Module 2. However, we respectfully suggest that they will be witnesses of fact and do not replace the need for expert evidence. It will be of assistance to the Inquiry, in our submission, to seek expert reports from public health experts and epidemiologists on their opinions on the development of the pandemic and advice on responding to the different stages of the pandemic.

Whilst recognising that the focus of this module is on administrative and Government decision making, those decisions can only be properly understood in the context of what advice was being given and the appropriateness of following that advice. In our submission, this is no different from the approach to Module 1 where expert reports have been obtained to explain, for example, matters of resilience and risk management and the suitability of those structures. Currently the expert advice that has been sought is the exclusive preserve of political scientists and, while important in its own right, we consider it would not be of assistance in understanding whether the advice given to administrative and political decision makers was appropriate.

The Long Covid groups appreciate that the leading epidemiologists in the UK will be giving evidence as witnesses of fact in Module 2 in respect of advice that they gave to the Government during the pandemic. Their witness statements will not be sufficient, in our submission, to address this gap in evidence in Module 2, as first they will be motivated to defend the advice without recognising any oversights or mistakes in approach. And secondly, they do not have the same duties to the court.

In addition, an expert report will provide a framework explanation of approaches to pandemics which will provide the context necessary to understand the evidence of individual experts on the advice given in SAGE and other relevant forums. From the perspective of Long Covid groups specifically, the Inquiry may well be assisted by an expert who specialises in the study of long-term sequelae, their characterisation in a pandemic context, and developing research methods and responses to them.

The Long Covid groups are currently considering a number of individuals to propose in this regard and will follow up with the Inquiry by correspondence in the spirit of assisting the Inquiry.

Parliamentary privilege. The Long Covid groups have noted the observations made in respect to parliamentary privileges in CTI’s note in advance of the second preliminary hearing and my Lady’s ruling of 17 February 2023 following the second Module 1 preliminary hearing. The Long Covid groups do not, therefore, seek to make any observations at this stage, and reserve the right to make submissions on the application of parliamentary privilege at a later date.

Rule 10, the Long Covid groups welcome CTI’s proposal of a staged process to afford Core Participants “a meaningful opportunity to engage in the process” of gathering evidence from witnesses. We endorse and support the submissions made by the bereaved families of Core Participants to be permitted to ask their own questions of witnesses and submit that this can be managed in a proportionate way.

The only additional observation that the Long Covid groups make is that the Inquiry consider reasonable adjustment for Long Covid groups when setting deadlines for responses. I will not repeat the general submission on reasonable adjustments raised yesterday at the preliminary hearing for Module 3. I rely on those submissions and, in the same vein, invite the Inquiry to provide Core Participants with at least 14 days to respond to the evidence proposals.

Relativity. During the second preliminary hearing for the Module 1 hearing, Mr Keith indicated that the Core Participants “persuaded the Inquiry team to alter the field tagging system so that documents can be marked with additional fields”. The Long Covid Groups apply for similar permission to be granted to them on their Relativity workspace so that they can have a coding panel installed. This will facilitate the team’s review of what is anticipated to be a significant volume of disclosure. We appreciate from Mr Keith’s comments this morning that this permission may be forthcoming in any event.

Commemorations and listening exercise in Covid-19 safety measures. I have addressed you already in relation to the listening exercise and commemoration and the Covid-19 safety measures at the preliminary hearing for Module 3 yesterday and therefore do not need to repeat those submissions today.

In conclusion, the Long Covid groups remain willing to assist the Inquiry with their investigations at all stages.

That is all I wish to say, unless there is any matter I can assist my Lady with. Thank you.

Baroness Hallett: Thank you very much, Mr Metzer, and I’m very grateful and welcome the offers of assistance. As ever, your remarks were well made and I will bear them very much in mind. I know that the Inquiry team will as well. Thank you.

Next I think we have Mr Friedman.

Submission by Mr Friedman, KC

Mr Friedman: Good afternoon, my Lady.

Myself, Anita Davies and Shamik Dutta of Bhatt Murphy represent Disability Rights UK, Inclusion Scotland, Disability Wales and Disability Action Northern Ireland. They make up before you the disabled people’s organisations that I will call DPO.

The Inquiry has reached the point of making important process-related decisions about what evidence to obtain, which witnesses to call and how to examine them.

The DPO want certain realities that affected the people they work with to be borne in mind by the Inquiry when making those decisions.

Contrary to some of the public discourse, the virus and its response did discriminate. Covid-19 posed a drastically higher risk to life and risk of harm to specific population groups of which disabled people were one. Furthermore, for disabled people in particular the consequences of state intervention to manage the virus were fundamentally more negative. These consequences included food and resource scarcity, isolation from essential services, and being put at risk of contracting the virus, for instance in care homes or from home carers lacking unprotected equipment or otherwise being untested.

All of which were compounded by lack of accessible communication and information. Fundamentally the political and administrative response to the pandemic has excluded disabled people. Either no thought has been given to them or thought given has been inadequate or too late.

My Lady, there are around 40 million disabled people living in the United Kingdom. The full impact of the pandemic and the political and administrative response to it upon disabled people cannot be fully understood without some appreciation of their situation as at the beginning of the crisis. On almost every metric the lives of disabled people are what the Equality and Human Rights Commission calls “a journey less equal”. Disabled people overall have lower educational attainment, lower employment and pay rates, suffer greater levels of poverty and significant levels of abuse, social isolation and stigmatisation.

In 2016 a House of Lords select committee published a ground-breaking report that identified the unequal impact of the Equality Act 2010 on disabled people. In consideration of inequalities, the needs of disabled people were too often an “afterthought”. For the future action, the report’s five major themes were: (1) reverse that afterthought syndrome; (2) plan proactively; (3) communicate better by engagement, listening and taking into account disabled people’s views; (4) make rights more accessible and enforceable; and (5) structure Government more effectively in order to discharge its responsibilities and to secure dedication to lasting change.

In 2017 the influential United Nations Committee on the Rights of Persons with Disabilities issued its first report on the UK. Of its many criticisms it found serious deficiencies highly pertinent to this Inquiry, including a lack of consultation with disabled people on policy and legislation that impacted on their lives, ill preparedness to protect them in the events of emergency, damage done by austerity measures, and a lack of reliable data, including impairment-specific and other disaggregated intersectional data.

In a separate investigation report which focused especially on matters of structural discrimination arising from austerity measures, the Committee concluded that:

“… there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been crossed in the State party.”

The treatment of disabled people as an “afterthought”, if at all, is one of the essential features of a disabling society. The social model that informs our clients’ perspective, organisation and advocacy is that essential injustices of being disabled are the product of socially constructed barriers and attitudes. For them, the significant issue in the fusion of science and Government that generated Covid policy is that none of it contained disability specialists, service providers, subject matter experts or end users. Disabled people were and are all too often subsumed into other categories such as care homes, the vulnerable or the elderly. Our clients complained in real time that their voices were being, as Disability Action put it, lost in the noise or ignored.

That disabled people were significantly more likely to die from Covid-19 was in due course recognised by some as was a disproportionate impact of lockdown upon disabled people. But the disclosure thus far strongly suggests that the official acknowledgement of and response to these key issues was either belated or insufficient. This was a basic failure of human accounting.

There are tools, my Lady, available in international human rights law to understand what happened to disabled people during the pandemic and how to transition out of it and build back better. The DPO highlight that at this preliminary stage because they will assist the Inquiry in charting its own course in relation to matters like expert witness selection and questioning, and avoiding the errors of exclusion that characterised the Covid response.

The UK has signed and ratified the United Nations Convention on the Rights of Persons with Disabilities, the UNCRPD. Most immediately relevant to this Inquiry is Article 11, which expressly requires:

“… all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of … humanitarian emergencies and the occurrence of natural disasters.”

In the development and implementation of legislation and policies concerning persons with disabilities, state parties are required to:

“… closely consult with and actively involve persons with disabilities, including children … through their representative organisations.”

The Committee’s general comment No. 7 makes clear that such consultation is particularly important with regard to emergency and disaster management.

The obligation that disabled people must be included in law and policy making, to collaborate in their co-design and co-production, is central to the Convention and derives from the original disability rights demand of “Nothing about us without us”.

The UN Committee on the Rights of Persons with Disabilities takes as its starting point that disabled people have long been and indeed still are denied involvement in decision making about matters relating to or affecting their lives. The corrective lies especially in consulting the representative organisations run by disabled people not just for them. The DPO say that that should have happened more during Covid-19. It is of overall benefit to the well-being of society if it can happen now.

The UNCRPD endorses a social model. Article 1 defines persons with disabilities to include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others. Various articles concerning awareness raising and accessibility underscore the extent to which disability is a form of structural and attitudinal discrimination. Additional articles on women, children and adequate standards of living, as well as references in the recitals to disadvantages on grounds of race and ethnicity and poverty, all recognise that disability discrimination intersects with other forms of discrimination.

The UNCRPD also makes clear that disabled people have different needs that derive from their impairments. Whether it be healthcare or education. However, as with all other human rights treaties, respect for the inherent dignity of the human being is the core value through which all other rights must be understood. Dignity is referred to three times in the preamble and in six of the substantive articles. It is the treaty’s core purpose in Article 1 to promote respect or inherent dignity, and in the first of its general principles of interpretation in Article 3(a), being respect for inherent dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons.

The preeminent place of dignity in the UN convention provides an essential way into understanding Covid decision making. However much the calls to aid the vulnerable during lockdowns may have been well meant, the discourse of vulnerability is problematic. It undermines the long-term aim of the DPO to mainstream societal understanding that impairment is not a tragic weakness requiring pity, still less disability should be understood as something which requires charity, welfare, special pleading or ableist sacrifice before the situation of disabled people is granted recognition. Instead, the convention requires in its Article 3(d):

“Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.”

The DPO question whether UK Government and society has yet been able to do that and how it might fare better in the future. Preparation for Module 2 should bear that question in mind.

That leads to expertise and experts. Regarding Covid’s implications for disabled people, the principal problem with expertise is that for a long time there simply was none; and none of the experts within the SAGE structure, or those in Government who procured their advice, thought to point that out. Of the initial disclosure from the SAGE personnel, it appears that it only belatedly became apparent that core gaps in expert advice, in particular an absence of service providers and end users who would understand the impact of decision making on ordinary lives. Initially Government also failed to incorporate such perspectives.

Even when SAGE sought to correct the problem by including public health and discrimination experts, they focused on other specifically impacted parts of the population such as ethnic minorities, children and the elderly rather than disabled persons.

In the instruction of its own experts and their questioning in due course, the Inquiry is asked to consider this failure of due regard. Part of the gap in expertise can now be filled with the DPO as Core Participants. They. In the reports they have cited, show the absence of expert advice and consultation resulted in failures of foresight of some of the most isolating and resource impoverishing experience of lockdown, for instance food and resource scarcity, that led to hunger and degrading treatment, absence of or limited provision of physical care for disabled people and cessation of respite and day care services. The lack of regard for disabled people’s caring obligations for others, insufficient access to information or lack of communication, the negative aspects of face masks in terms of health and/or barriers to communication, inadequate protection of individuals in social care settings, and the exacerbation of pre-existing race, gender and socio-economic inequalities in society and their consequence for health, employment and poverty.

An issue for Module 2 is how much and in what way were those aspects of human predicament considered at central Government level. In terms of the chosen subject matter, the commission of reporting in Module 2, the DPO are able to make the following general observations at this stage. They do so because it may be relevant to the scope of the expert reporting but also because it will be relevant to the selection and questioning of other witnesses whose evidence overlaps with what experts may deal with.

First, we ask the Inquiry to make available Module 1 reports to Module 2 Core Participants as soon as possible, as has been asked by others, because, like Module 1 itself, they provide context for understanding the decision making to be examined in Module 2. The Long Covid groups and others have raised this and Mr Keith gives some assurance today. What we would like, knowing that they will be disclosed publicly in due course to everyone, is to get them early for our timely preparation. That is important for four reasons:

  1. the reports will be significant reference points for the Inquiry in determining future lines of investigation going forward.

  2. Module 2 witnesses will be asked about their awareness and/or views of a matter raised in Module 1 reports.

  3. the DPO have an obvious interest in the matters to be reported upon by Professor Sir Michael Marmot and Clare Bambra relating to health inequalities and public health structures, and Bruce Mann and Professor David Alexander regarding the civil contingency system insofar as it was set up to risk assess and how much it was ready to respond to their situation.

The DPO of course recognise the necessity to split the Inquiry into modules but, as indicated in my opening remarks, it is important that the context of the disabled people’s situation is appreciated as part of the Module 2 investigation.

Turning then to the areas of expert reporting that you described in your update notes. First, data collection and its use and Gavin Freeguard. That instruction will presumably help to investigate the truism that statistical modelling in aid of policy making is only as good as the data it is based upon. The DPO draw attention to Article 31 of the United Nations convention. It requires disability data collection, including the acquisition of impairment-specific data. As I have said, the UK was criticised by the UN committee for its lack of a unified data collection system and the limited collection of disaggregated and intersectional data in surveys and censuses on the general population.

The Rule 9 statements of the DPO make the same point. If gaps in data affected modelling and policy, then Mr Freeguard and other witnesses should be asked to consider accessibility of data concerning disability and various impairments, including its intersection with other protected characteristics. If there were deficiencies in the data, how much was this accounted for, if at all? Was the collection and use of data too focused on numbers and not enough on provision and end user experience? And if the criticism turns out to be correct, what are the reasons for the UK’s failure to create a useful and aggregated data system relating to disabled people, including those with such other protected characteristics.

The second –

Baroness Hallett: Mr Friedman, I’m sorry, I apologise for interrupting, and you have been making some extremely important points, and that’s another reason I didn’t interrupt, it is just that you are almost reading word for word the written submissions, and I have read them. We all have read them very carefully. And given the number of people who wish to speak this afternoon, I just wonder if it was possible for you to be able to highlight the other points you wanted to make on process as opposed to the background to how disabled people felt about their treatment during the pandemic and before?

Mr Friedman: My Lady, I’m grateful for that indication, and of course I will.

Let me just deal with it then briefly, just to finish this section, on those that you have identified. With regard to the machinery of Government expert, and that which will be dealt with by Mr Alex Thomas, what we apprehend is potential overlap with that which will be dealt with by Bruce Mann in Module 1. The Inquiry has indicated for Module 1 purposes it will look at it at a higher level of generality. But what will follow through, we submit, with Module 2 and Mr Thomas’s reporting is the extent to which recommendations which were made to plan specifically around disabled people in the advent of an emergency decision-making were followed through, and if there were deficits, were they known about and how were they filled.

My Lady, that then leads to the question of devolved Government. You will have seen what we said. Our submission is that that should be focusing to the specific extent to which devolved Governments understood the issues in relation to disabled people differently, how they monitored it differently. And that will be an important compare and contrast going forward.

Finally, on the matter of transnational comparisons, and that will be dealt with by Thomas Hale, we understand that’s going to be a mechanism for the Inquiry to comply with its own terms of reference to consider international practice so far as is reasonable. What we say about that, and following on on an address that has already been made in relation to the World Health Organisation as regards Module 1, is that the World Health Organisation did issue guidance, as did the United Nations General Secretariat, on dealing with disabled persons during the pandemic, and consideration should be given as to how much that guidance was dealt with in other countries and whether there were better practices and better means of protecting the interests and rights of disabled people.

My Lady, that’s what we say on experts.

It does follow from all that I have said on that, and dealing with the issues that have been drawn to your attention by others, that we do support the cause for the Inquiry and all experts to focus on structural discrimination, which includes race, gender, age, childhood and comparative poverty. Such features are valuable to consider in their own right and, as intersecting factors in the lives of disabled people, they can be structurally excluded by cultural values and attitudes on those matters, in addition to social barriers and exclusion arising from attitudes to disability.

Going forward, we respectfully submit that you can investigate these issues in a combination of four ways. You can ask the Core Participants and other witnesses. You can ask your instructed experts. If they don’t know, you need to consider instructing subject matter experts who do. And in any event you should read the most relevant landmark reports that have been written on the subjects.

In addition, we await the Chair’s decision, your decision, as to whether you ought to be assisted by assessors, and the Prime Minister’s decision as to which panel members ought to be appointed.

Can I turn to selecting and questioning witnesses. Given the volume of disclosure that is being produced, we understand that CTI want time to reflect on which witnesses should give live evidence and what the issues should be, and we have heard the dates suggested there of April. Of course, informed consultation cuts both ways, and with that in mind the DPO have tried to identify on their own some provisional issues and questions and some documents to rely upon. To that we add the following.

First, there is good reason for the Inquiry to consider calling Core Participant witnesses from the civil society groups, especially those involved in trying to influence administrative and political decision making in real time.

Second, the DPO acknowledge the instruction of Rule 10 of the Inquiry Rules and CTI’s suggested approach if their note that aims to suggest that CPs are meaningfully engaged in the process of prepared questioning.

Our caveats concern timing and flexibility to ensure that the approach evolves into the best version of itself. Evidence proposals will need time to digest, they should not be treated as inflexible pleadings. 15-minute breaks at the end of each witness should always occur. And if issues can be discussed before September, they should be, which is why we join others, and seemingly Mr Keith himself, in wanting another preparatory hearing before the end of the summer months.

Third, you have asked us to consider what additional Rule 9 request you might issue and we suggest at this stage the Care Quality Commission. That is not least because they would have been in consultation with central Government on core issues.

Fourth, there are certain types of generic questions that have a very proper relevance to this Inquiry, of which we have highlighted three. Unlike a trial or other legal process, it is intrinsic to the nature of this particular inquiry to take an interest in hypothetical questions. For example, what if lockdowns had started earlier? How could exceptions to social isolation regulations have operated for those in specific categories of needs? We say, perhaps like no other inquiry before it, this should be a forum that embraces the virtue of hypothetical questions.

To those can be added questions concerning proportionality of a measure. Human rights law provides a well known fourfold template of such questioning that does not need to be followed slavishly but helps to structure the interrogation of difficult choices. My Lady will know it very well but it may be important to speak about it just a moment in the hearing.

It asks of a measure: (1) whether its objective is sufficiently important to justify the limitations of a fundamental right; (2) whether it is rationally connected to the objective; (3) whether a less intrusive measure could have been used; and (4) whether having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

The final generic type of question is about lessons learned. And in keeping with the aims and structure of the Inquiry, that we do not understand to be planning a separate recommendations module, at least at present, witnesses need to be asked what they have learned and how they would do things differently. And the Rule 9 approach to this issue, as already exemplified by the questions put to the SAGE witnesses, essentially incorporates what worked and what could work better, and we submit respectfully that should be developed in oral questioning.

Of the remaining process issues, may I mention then briefly parliamentary privilege and reasonable adjustments. On Article 9 of the Bill of Rights 1689 we have taken the approach that even if it does apply, it would not prevent us from referring to parliamentary reports and other statements as a matter of record, of what was said in them. Also, it is open to any party to do that as a means to establish with the Inquiry the arguable relevance of issues, proposed questioning, further requests for disclosure and potential recommendations, all of which can be done without, in the words of Article 9, questioning or impugning the contents of those sources.

We’ve done that in our written submissions, but to that end the DPO would especially draw the Inquiry’s attention to the Women and Equalities Committee report of December 2020, entitled Unequal impact? Coronavirus, disability and access to services.

There is good reason for it to be placed on the Relativity platform along with the other core parliamentary reports of the period that are already there.

As to reasonable adjustments, the DPO made submissions at the previous module to here in October regarding suggested approaches to Inquiry proceedings. That remains our clients’ thinking and we look forward to the Inquiry’s proposal on that.

Can I make four general observations. First, the provision of a British Sign Language communicator for preliminary and evidential hearings on the YouTube screen would be an important adjustment, including for those who understand sign language but do not necessarily read subtitles or transcripts.

Second, on top of the suggestions we’ve already made, we support the Long Covid groups and others who have made submissions that steps should be take to ventilate and otherwise make safe Inquiry venues.

Thirdly, as regards the practicalities of Every Story Matters, it will be important that the people and organisations appointed to run the projects are appropriate to be involved in what on any view will be an extraordinarily sensitive endeavour, coupled with that the Inquiry is asked to consider and clarify how the listening exercise will be accessible to disabled people.

Fourth, and overall, in its process and in its content this Inquiry is in a position to aim for a gold standard of disability inclusion that others can then follow.

Final, my Lady, Kamran Malik is the chief executive of Disability Rights UK, who make up one of the four organisations that we act for today. He speaks for all of them when he says that disabled people know from long experience that Government all too often sees them as a cost never an asset of value and worth. He adds:

“We are not seen as an investment in our country.”

My Lady, that is part of the inescapable context of the decisions that were made during Covid-19 pandemic. Those attitudes do not go away overnight. You will have to decide how much damage they have done.

Thank you, my Lady.

Baroness Hallett: Thank you very much, Mr Friedman. You have given the Inquiry a great deal of food for thought, and I promise you and those you represent that I will consider all the matters you put before us before in writing and today extremely carefully. So thank you very much indeed.

I think it is now Ms Twite.

Submission by Ms Twite

Ms Twite: Yes, thank you, my Lady.

My Lady, I represent the children rights organisations, and they include Save the Children Fund, Just for Kids Law, and the Children’s Rights Alliance for England. I’m instructed by Just for Kids Law with pro bono support from Norton Rose Fulbright.

Can I start by giving two thank yous to your team. Firstly to the operations team, who I know have been working behind the scenes this morning to resolve technical issues and have been of great assistance to me. And secondly to your legal team, as in the past couple of weeks there has been correspondence between the children rights organisations and your legal team and we have managed to resolve a number of issues between us, which does mean that both our written submissions to the Inquiry for today’s hearing and my oral submissions are shorter than they otherwise would have been.

But we do feel the need to emphasise, whilst of course acknowledging the enormity of the task you are team faces, that engagement with our team is critical to meet the still ambitious timetable that your Ladyship has set, and we hope that this level of engagement does continue going forward.

As we set out in our written submissions, there are still a number of issues that we need to thrash out regarding Relativity, and we have invited a short meeting between the relevant members of your team and Epiq to deal and iron out some of those outstanding issues. I don’t intend to address you on those today, my Lady. You have our written submissions on Relativity and I don’t intend to repeat them, or to repeat all of our written submissions generally, although of course we do still rely on what is said in them. But I know that you and the Inquiry team have them and will consider them.

What I do want to do shortly today in the time I have is to address the two main areas, and those are, firstly, the scope of Module 2 and the list of issues that was helpfully suggested by Mr Keith this morning, and, secondly, to address you on the listening exercise.

Before I come to those main points there are two very short points about process that I wish to make. Firstly, about Rule 9 requests. In company with others we have previously requested disclosure of the actual Rule 9 requests. We still do make that request but we don’t intend to repeat the submissions that we have previously made upon that.

However, we have in correspondence and in our written submissions requested for a number of other ministers and other bodies to be sent Rule 9 requests. We are grateful for the indication that from Mr Keith that those suggestions are being considered. What we ask is that we are informed as to whether or not those requests have been acceded to, so we can understand the reasons behind whether or not a certain body is receiving a Rule 9 request that we suggested should do and we can make further submissions if and where appropriate.

I think I’m right in understanding from Mr Keith this morning that no Rule 9 request has been sent to the MOJ that is relevant to the scope of this module, of Module 2. We did invite such a request to be made to the MOJ, so if the Inquiry team are not intending to do so, we ask that we be informed, that the course could be done in the monthly update note, so that we understand why not and we can, as I say, make further submissions where appropriate.

The second short point I wanted to make was to endorse a suggestion by Mr Keith that there is an earlier preliminary hearing this summer. We would ask that thought be given to listing that earlier than July, as that would potentially be just before a time when I imagine a number of people will be taking a summer break, and we are concerned that in practice that might not achieve much more than the September hearing. But we ask that that is something that the Inquiry give consideration to.

If I can I will move on to the two main submissions that we wanted to make orally today. The first being – concerning the scope of Module 2 and how the list of issues plays into that.

Mr Keith this morning invited a direction from you that a list of issues for Module 2 be provided either in late April or early May. We welcome this. This would be immensely helpful to our preparations. But we would also welcome the opportunity to feed into the list of issues ourselves and not be provided or presented with a final definitive list. That might mean, for example, that a draft be circulated earlier. We leave the details of that up to the Inquiry. But we would be grateful for some directions or indications on that point as to how the Core Participants feed in to what would be an appropriate list of issues for this module to consider.

Again, for example, we note that there was a suggestion from Mr Keith this morning that decisions made about custodial settings would not be considered within this module. I understand that is perhaps the rationale behind the lack of Rule 9 requests for the MOJ.

We ask, along with others we note, for further information about this decision. We had considered that decision making concerning children in custody would be properly within the scope of this module. And this may be exactly the sort of issue that is properly considered by us being provided with a provisional list of issues that we can then provide comments or submissions on.

Having said that, there are a number of points I wanted to make today about the scope of this module. Firstly, in relation to children, whilst we would welcome the opportunity to provide more details about exactly how this module should consider the impact of children, in brief we anticipate that the list of issues will include how children were considered, and of course it will need to include whether and how decision making considered the impact on children, including how that decision making dealt with children who had protected characteristics, whether those rights were sufficiently prioritised, and also look at the quality of that decision making, which is not only about how those decisions were made and how children’s rights were considered, but also the evidence or the expertise used to feed in to those decisions.

We hope this is something that we can flesh out further by providing more details about the list of issues, which we hope to be provided for by your Inquiry team.

Secondly, there is a question about how this module fits in with later modules, and that’s particularly true when it comes to children. As we understand it, there is likely to be more detail forthcoming in early summer of this year about the scope and detail of future modules. And we understand that one of those modules will consider in particular children, the impact on children, and education. We invite your team to provide us with as much information as possible about what issues might be covered in those, because of course what issues are considered in Module 2 in relation to children will be affected by what issues are considered in a later module. And whilst it is inevitable that there may be some overlap, it is of more concern to us that there may be inadvertently a gap in what is considered and what we invite this – the Inquiry to consider in this module will inevitably be impacted by that.

So the more information that can be provided to us about that earlier on, the easier that exercise will be. Then, of course, there will be a further question about how this module and that later module interact in particular concerning the rights of children.

Thirdly, when considering the scope of this module, there is, of course, a concern raised by a number of people about how inequalities and protected characteristics are being addressed. That of course includes children. It also includes structural racism. We welcome your clear commitment today, and indeed throughout this Inquiry, to keeping equalities at the forefront of this Inquiry and the forefront of each module. The question, however, that we pose is not whether or not that will be achieved but how it is to be achieved. And we wish to make some short points about that.

The first point we make is that it is important not to conflate structural racism with institutional racism. We endorse, and I don’t need to repeat, the excellent points made by Anna Morris, who addressed you before the luncheon adjournment, about the importance of structural racism, which we also consider to be relevant to the children’s rights organisations.

In our view it is essential to consider the impact of that structural racism as part of the commitment that you have made to consider inequalities throughout this Inquiry.

We also invite the Inquiry to set out its approach into how matters related to inequalities and protected characteristics will be addressed. This could be done by using the structure of an equalities impact assessment on the Inquiry’s approach itself. Having a clear outline of how it will be addressed will allow a transparent consideration of the Inquiry’s approach to considering structural racism and, indeed, any other structural discrimination that is relevant to this Inquiry.

Further, we invite the Inquiry, in setting out its approach, to consider not only individual protected characteristics but also how it will consider the intersections between different equalities, including the intersection of being a child and having another protected characteristic.

In addition to the protected characteristics of the Equalities Act, we also invite the Inquiry to consider inequalities caused by socio-economic disadvantage. Whilst there is no legal duty to do so in England, unlike in Wales and Scotland, this would be clearly material to the content of this Inquiry and your Ladyship’s priorities, and would help to demonstrate the commitment to inequalities in this Inquiry.

In setting out the Inquiry’s approach to how inequalities will be considered, one question, of course, is what evidence and what expertise will be needed in order to inform the approach?

We heard some detail of that from Mr Keith this morning. That was helpful and we are grateful for those indications. But we do endorse the proposal from other Core Participants that an expert on structural racism would support and assist your work. We ask, however, that be considered in the round about all structural consideration, the other protected characteristics, and it would be considered fully as to what expertise does need to be brought before the Inquiry, and indeed in which modules it is more appropriate to bring them in.

I turn now to the second point to make, which was concerning the listening exercise. Your Ladyship knows that this has been a particular interest and importance to the children rights organisation, as indeed to other Core Participants, and we have heard a great deal this morning and we welcome the further information and further clarifications. We also welcome the overall approach and the commitment to enabling a range of channels and specific outreach to seldom heard communities, as well as the commitment to a trauma-informed approach. We look forward to some of our further questions being answered in the webinar that’s being proposed, and we don’t doubt that your team have been working hard on this aspect as well as other aspects of the Inquiry.

However, the children’s rights organisation do wish to express the disappointment that so far no children have been heard from, and we still are not clear how or when they will be. We have asked for more information and we have asked for further explanation as to how children will be able to participate going forward. We know they are not able to participate in the web form that’s currently available on the website. And whilst a number of channels were suggested by Mr Keith this morning as to how participation will be facilitated, many of those channels would not be appropriate for children to participate in. We are concerned that if there are limited ways in which children can participate then that will limit the number of children who do participate.

We asked the question about a hypothetical child, such as a ten-year old who wasn’t able to go to school, living with no garden, and maybe who experienced racial discrimination, how would such a ten-year old contribute to the listening exercise, how would they know about it and how are they going to be supported?

So we have asked for more detail, because whilst we accept that the aims and the commitment are laudable, just like many of these commitments, the devil, I’m afraid, is in the detail, and therefore we do welcome further information, as we have set out in our written submissions, and we thought it helpful to set out some of the additional information that we are requiring and why.

Firstly, we ask for it to be clear what the stated objectives of the listening exercise are. Whilst of course it is understood the importance of hearing from people and them feeding in to the Inquiry, in our submission, to be an effective exercise, there needs to be explicit stated objectives as to what that is achieving. And following from that, understanding how that will feed into the Inquiry and impact on your Ladyship’s decisions.

We have heard today that reports will be considered. We ask whether or not those reports are realistically going to be ready prior to the hearings in Module 2. And again, if they are, how it is proposed they feed in to them.

Following on from that question is, of course, the question of whether or not a proposed timetable is yet in place.

Finally, we ask for a commitment that the tendering exercise for this phase will ask for specific expertise in engaging children and whether that was part of the procurement process.

My Lady, we know that you understand how important it is to engage children in this process, and so we ask, as I say, for those details so that we can assist and hope that we can collaborate in ensuring that the listening exercise is as effective as you aim it to be.

So, in summary, we are inviting directions about the service of key issues – of the service by your Inquiry team of the list of key issues, as well as a direction or some indication about how the Core Participants feed in to determining that.

Further, we endorse and invite the direction of an earlier preliminary hearing, as well as an outline of how the Inquiry is intending to approach the issue of the impact of inequalities, and further detail on the listening exercise, which we understand is probably already forthcoming.

My Lady, unless I can assist you any further, those are the submissions on behalf of the children’s rights organisations.

Baroness Hallett: Thank you very much, Ms Twite, that’s very helpful, and you’ve raised a number of matters that we must consider very carefully. I do understand the concern about the overlap between this module and later modules, and I mentioned the overlap I think yesterday, but I welcome your offer of assistance to make sure there aren’t any gaps and that matters don’t fall between the two modules.

As far as the comment you make about ensuring that children are heard, yes, I totally and utterly believe in that. I also, as I think you’ve heard me say before, believe in acquiring or obtaining accounts from children as soon as possible. I have done a lot of work involving child witnesses over the years and I know how memories can fade. Adult memories can fade but it is even more important with young children to get their accounts recorded as soon as possible, and I promise you I have given specific instructions to the team to that effect. So we will do what we can. But I appreciate it must be frustrating when months are going past and you can’t see the result as yet, but I hope you will be able to learn the answers to some of your questions very soon.

So thank you very much indeed for your help.

Ms Twite: Thank you, my Lady.

Baroness Hallett: Right, I think it is Ms Davies next, please.

Submission by Ms Davies, KC

Ms Davies: Thank you, my Lady. Can I confirm that you can see and hear me all right?

Baroness Hallett: I can, Ms Davies, thank you.

Ms Davies: Thank you very much, my Lady.

I represent Southall Black Sisters, who are commonly abbreviated to SBS, and I do so with Marina Sergides and we are instructed by the Public Interest Law Centre. I have five headings for my submissions, which will be shorter, as a result of Mr Keith’s opening this morning, than I had anticipated. So that is helpful.

My Lady, I need to start with the funding decision. SBS is, of course, pleased that we have been granted funding for legal representation. But, as we say in our written submissions, my client is devastated – and that is not too strong a word – that Solace Women’s Aid was not awarded funding for legal representation. Solace will be speaking immediately after me and they can put their own case on funding, but we do want to say that SBS supports their sister organisation in asking for that funding decision to be reconsidered.

SBS understand exactly the difficulties that Solace face. As a charity, all of Solace’s money is fundraised for specific purposes. Those specific purposes are the delivery of frontline services supporting women and girls who have experienced domestic abuse. When the public and funding organisations give money to Solace, they do so on the basis that that money be will be used to provide those necessary frontline services and not legal representation.

Both SBS and Solace were designated as Core Participants precisely because of their expertise in domestic abuse. SBS are, of course, experts in domestic abuse. They deliver frontline services and they lobby on the issue. But their focus and their clientele are black and ethnic minority women and migrant women. The two groups were designated jointly with Core Participants with joint legal representation because we assumed it was thought that the two groups acting together can assist the Inquiry in scrutinising Government decision making to ascertain what consideration was given, if any, to the consequences of lockdown on domestic abuse.

SBS are concerned that without funding for legal representation, Solace will be unable to participate effectively in this Inquiry, and SBS believes that that will be a loss to the Inquiry. It will diminish the Inquiry’s ability to scrutinise Government decision making in terms of the pandemic and lockdown on violence against women and girls.

We thank you the TUC, who will be speaking shortly after Solace, for their support, and we agree that the TUC, as representatives of frontline workers during the pandemic, should also be granted funding.

In summary, on funding therefore, SBS supports both the TUC and, most importantly for SBS, its sister organisation Solace in their requests that the refusal of funding be reconsidered.

Let me move on to Rule 9 requests. We raised a number of questions about the content of Rule 9 requests in our written submissions and some of those were answered very helpfully this morning by Mr Keith.

But we repeat the point that others have made that the decision not to disclose those requests has led to uncertainty for the CPs, and we repeat the request made by ourselves and others that the Rule 9 request should be disclosed.

We appreciate the confirmation that Rule 9 requests have been sent to the Government Equalities Hub, to the Domestic Abuse Commissioner and to the Victims Commissioner. We also note Mr Keith’s statement this morning that the different units of the Home Office that we suggested, the Forced Marriage Unit, the Interpersonal Abuse Unit and UK Visas and Immigration were not sent individual Rule 9 requests, and we hope that the Rule 9 requests to the Home Office will cover those areas and of course we await receipt of those responses.

We do, finally, on Rule 9 requests, raise the Government’s Equalities unit which, as we understand government structures, is separate to the Government Equalities Hub, and is also separate to the Cabinet Office, although the Equalities unit does work with both of those, and so we suggest a separate Rule 9 request to the Equalities unit.

On experts, we join the call for copies of the letters of instruction. On 31 October, at the last preliminary hearing in this module, we submitted that expert evidence was needed on the assessment of the proposed policies of lockdown dealing with the pandemic and so forth on those protected characteristics. We’ve looked at the website of the four instructed experts and we cannot see that any of them have a specialism in equalities.

My Lady, the very first part of the Inquiry’s terms of reference as published state that the Inquiry will consider any disparities evident in the impact of the pandemic on different categories of people, including but not limited to those relating to protected characteristics under the Equality Act. My Lady, we know that you are committed to that personally and that counsel to the Inquiry is also committed to that.

Discrimination and the appropriate focus to be given to equalities issues in public decision-making is a complex matter. It is, of course, partly a legal analysis which is for you to carry out, applying the Bracking principles, which include that equalities duties are an integral and important part of the mechanism for ensuring the fulfilment of the aims of anti-discrimination legislation, and that the court must be satisfied that there has been a rigorous consideration of the duty so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them.

But, my Lady, in order for you to conduct that legal analysis and come to a legal decision, compliance with the public sector equality duty is also a factual question. We say that in order for the Inquiry to be satisfied of legal compliance, it cannot do so without receiving expert advice on how the public sector equality duty should have been approached when it came to assessing the potential impact of the Government’s decisions regarding the pandemic and lockdown on women and girls, and whether, having considered the evidence, the various public bodies did approach their decisions with that awareness. That is, the expert evidence we say does not decide compliance, that is a matter for you, but it assists and informs the legal analysis and the legal decision that you have to make, my Lady.

For that reason we propose the instruction of an expert specialising in the equalities aspects of public decision-making when it comes to the interests of women and girls. We do not suggest one general expert dealing with all aspects of equalities and none of the Core Participants have made that suggestion.

Expertise in, for example, structural racism is an important matter and is different to expertise in the protected characteristic of sex. We support the other CPs’ requests for an expert in structural racism but our separate request is for an expert whose specialism is the equalities impact on women and girls that should be considered in public decision making. And within that specialism we would expect the expect to adopt an intersectional approach, so that she or he understands that women and girls have multifaceted characteristics and can have more than one protected characteristic.

SBS’s particular interest, of course, is in the areas of black and ethnic minority women and migrant women, and we would expect an expert specialising in the protected characteristic of sex, and its interaction with race, class and immigration or nationality, to understand those intersectional nuances.

There are various suggestions by other Core Participants with which we agree. We agree that a third preliminary hearing sometime in the summer seems a sensible suggestion.

We support consideration of the opportunity for Core Participants to ask questions of witnesses directly, as raised predominantly by the Families campaign. We would envisage that all Core Participants would appropriately limit themselves, bearing in mind time constraints, but we agree with the Families that facilitating CP questions ensures the effective participation of the bereaved and, we would say, ensures the effective participation of survivors of domestic abuse as well as others.

We have already said that we support the instruction of an expert into structural racism and of disclosure of the letters of instruction to experts, and I do not need to repeat Ms Morris’ detailed submissions of the importance of structural racism to this Inquiry.

We also agree that when it comes to the question of scope and the list of issues that will be considered in this module, and we support the submission made just now by Ms Twite, that it would be helpful for Core Participants to have the opportunity to feed in to the list of issues by draft listings being circulated or however it is done, but that the scope or list of issues should take into account the context of the pandemic: that it came ten years after austerity; that it came to a society where we have racial and ethnic inequality, including health inequalities, and inequality between disabled and able-bodied members of society; as well as a society that has not tackled violence against women and girls. We say that that context is a vital area that the Inquiry cannot avoid and that the Inquiry will be scrutinising Government decision making bearing in mind what had happened to public services as a result of austerity over the previous ten years.

My final heading is on the Listening Exercise. We are concerned at the ability of the current contractors to undertake a trauma-informed approach to gathering people’s experience. Mr Keith’s setting out of how the contractors would work this morning was helpful, but our concern is that the voices of women and girls, particularly black and ethnic minority women and girls and migrant women and girls, should be heard in the listening exercise. We note that additional contractors are to be engaged and we have recommended in our written submissions – I don’t need to repeat them – a number of institutions who regularly undertake research into domestic abuse, and therefore they have the appropriate expertise when it comes to listening to trauma with a confidential, sympathetic and understanding ear, and we do submit that the listening exercise should consider instructing one or several of them to undertake work with survivors of domestic abuse.

My Lady, those are my five points.

I want to reiterate that you will next hear from Solace Women’s Aid and I have made the point that SBS support their request for the refusal of funding to be reconsidered.

Unless there is any other matter that I can help your Ladyship with.

Baroness Hallett: No, thank you very much, Ms Davies. As constructive as ever. And I shall bear very much in mind the submissions you make. And I do understand the point you are making about funding, I do, and I undertake that I will consider very carefully the submissions that are made, after we have taken a break, from your colleagues at Solace Women’s Aid. So thank you very much.

We will break now until 3.25 pm, please.

(3.12 pm)

(A short break)

(3.25 pm)

Baroness Hallett: It is now the time for Ms Goshawk to address me on behalf of Solace Women’s Aid.

Ms Goshawk, are you there?

Ms Goshawk: Yes.

Baroness Hallett: Hello. Can I just say this before you begin, and I’m sorry to interrupt you before you have even had a chance to start, if one can do that.

In your submissions, and Ms Davies has already referred to them, Ms Goshawk, you refer to my funding decision. I just wanted to say this. Funding decisions are normally determined in writing. I do understand the disappointment my decision was to your lay clients, and I have read your written submissions carefully and I think the best way forward, to prevent people thinking they can make oral representations on funding decisions, what I would like to do is to consider the written submissions you have made and to see whether they provide me with new material upon which I can reconsider my decision, but I would rather we didn’t have oral representations on funding decisions. Does that make sense?

Ms Goshawk: Yes, I will keep my submissions short then.

Baroness Hallett: I’m sorry about that, and I appreciate that you thought that you would be able to deal with it. I should have mentioned it before. But I have to be really careful about the process because I have to be fair, obviously, to all participants. And as far as other Core Participants are concerned, I have been sticking strictly to – and for example, with Core Participants status, as you may know, I deal with that in writing. And save in exceptional circumstances, and so far I haven’t found them, I think it is the only fair way to process it. But I promise your lay clients I will look very carefully at all the matters that you have put in your written submissions and see whether there is scope for a reconsideration.

Ms Goshawk: Thank you.

Baroness Hallett: Thank you very much.

So as far as any other issues are concerned, Ms Goshawk – I’m sorry, I hope I haven’t, as it were, cut straight across you.

Submissions by Ms Goshawk

Ms Goshawk: It’s okay, I will do my best to ad lib and make some tweaks.

So, Solace Women’s Aid appears without the benefit of legal representation at preliminary hearing, and therefore I speak on behalf of the organisation as an employee.

I was going to focus on the funding for legal representation but I will move past the issue and focus on a couple of other things to support points raised by our sister organisation, Southall Black Sisters, and in particular the Listening Exercise.

So we thank the support of – the written submission and this submission was prepared in-house with pro bono assistance from Southall Black Sisters’ legal representations, and we wanted to thank them for that.

To go on to issues other than the funding matter, we have seen the submissions filed by our sister organisation, Southall Black Sisters, and agree with their written and oral submissions, in particular wanting to focus on their submissions around Rule 9 requests, their instruction of expert witnesses on equalities and structural racism, including the intersectional experiences as far as the violence against women and girls, which we understand is still under consideration, and we thank the Inquiry for that.

And the Listening Exercise.

We were going to talk about the Rule 9 requests but we just wanted to thank the Inquiry for their confirmation about requests being sent to the Government Equalities Hub, Domestic Abuse Commissioner and Victims Commissioner, as Solace had called for alongside Southall Black Sisters in earlier preliminary hearings.

In relation to the Listening Exercise, we thank your Ladyship for your comments at the beginning of the hearing about providing further information about this exercise shortly.

We today reiterate the importance in ensuring that the voices of women and girls who experienced domestic abuse and wider forms of violence against women and girls during the pandemic and lockdown are heard. We believe this can be best achieved if those organising the Listening Exercise work closely with specialists who understand trauma-informed methods and, crucially, the experience of violence against women and girls. We welcome the commitment to a trauma-informed approach to the exercise, but it is not currently clear on how the current organisations running this exercise have the expertise to work with survivors who may have or may currently still be experiencing abuse and violence or did so during the pandemic. And we want to reiterate the importance of ensuring that this exercise creates and maintains psychological and physical safety during the process of sharing their experiences.

I think other than the funding issue, that was all we wanted to raise today, because we supported the submissions of Southall Black Sisters, so I won’t take any more of your time. Thank you.

Baroness Hallett: I’m very grateful, Ms Goshawk. Again, apologies for cutting across you.

I do understand the reservations you have about the Listening Exercise, perhaps as a result of some of the reporting about it. But can I emphasise again, as I hope Mr Keith emphasised this morning, there is a distinction between those who are currently advising us on how to communicate with particular groups and reach the seldom heard, for example, and those who will be working directly with people who have suffered domestic abuse or who have suffered bereavement or other kinds of suffering.

So I do hope people are now beginning to understand that when we are talking about the trauma-informed approach, the trauma-informed approach is not just in the way in which we communicate but in the direct contact with people.

From my work in another capacity, I am very conscious of the need to make sure that when you are trying to get people to give their accounts that you really do need to know what you are doing and the difficult areas that you are venturing into.

So thank you very much for your help and I promise you I will return to the question of funding to see whether or not there is any reconsideration there that can be done.

Thank you very much indeed.

Ms Gallagher.

Submissions by Ms Gallagher KC

Ms Gallagher: Thank you, my Lady.

My Lady, I assume that the remarks in relation to funding apply also to the TUC?

Baroness Hallett: I’m afraid so, Ms Gallagher, I was about to say it. I appreciate that you understand that I have to maintain the same process if I’m going to ensure fairness to all.

Ms Gallagher: I’m grateful. I will return to that very, very briefly at the end. But I won’t make the submissions I intended to make in light of the indication that has been given.

Baroness Hallett: Thank you.

Ms Gallagher: So, my Lady, may I start by addressing the remarks that you made at the outset today regarding certain commentators who are publicly suggesting that this Inquiry may be a decade long whitewash and establishment cover-up.

I suspect, my Lady, that those who are professing to have so little faith in this Inquiry, or indeed in you as its chair, may not be familiar with your work or your record. I am one of the advocates in the virtual room today who of course acted in the 7/7 London bombings inquest. It was neither a decade long nor a whitewash nor an establishment cover-up. Quite the contrary. And I suspect anyone who has appeared before you over the years, my Lady, would simply not recognise the characterisation that those words suggest.

That suggestion also appears to be made without awareness of the legal framework governing independent inquiries or, indeed, the commitments you have made from the outset, in your opening statement in July 2022, that you will undertake and conclude the work of this inquiry as speedily as possible so that lessons are learned before another pandemic strikes.

At the outset, on behalf of the TUC, we say that we do not share the concern of those commentators expressed in that way. Nor, frankly, do we recognise the implicit slur. We of course have confidence, my Lady, that you will conduct, as you have been, the Inquiry impartially and openly, in accordance with your statutory obligation to do so.

We, of course, may not always agree. On occasion we may take issue with or challenge your decisions. But there’s simply no basis to the notion that you would countenance presiding over a whitewash or cover-up, and the TUC wish to put that on record in light of your remarks in opening today.

I return, if I may, to the TUC’s touchstone of the three As, which we referred to at the October hearing, my Lady: a desire for answers, accountability and above all for action, so that lessons are learned from what happened during this pandemic, and lives, livelihoods and safety are protected.

From the earliest stages of this Inquiry process, including prior to the completion of the terms of reference, we have understood that we share those aims with you in this process, my Lady. We also share your desire to proceed as quickly as possible whilst ensuring the Inquiry is effective, including interim reports and interim recommendations where merited.

Importantly, we know, although some commentators may not, that submissions made by Mr Keith KC today, or by Ms Carey KC, yesterday, or indeed by any other member of your counsel or solicitor team, although made by your team are not determinative of your decision-making. Rather, the decision-maker is you, my Lady. You are perfectly entitled to reject advice given to you or submissions made to you by your Inquiry team. And where there is a dispute between CTI and Core Participants, you may, on occasion, prefer the submission of Core Participants.

Now, you may have noticed two twin themes in our recent written and oral submissions, including the submissions for today, with us both requesting earlier disclosure of the Inquiry’s developing thinking on future direction of travel of the Inquiry as a whole and within specific modules, and also requesting earlier preliminary hearings at a time when Core Participants can still influence the direction of travel.

Those requests are made precisely because we know your mind is not closed, you are open to taking a different course to that proposed by your own team where Core Participants persuade you otherwise.

Hearings such as today are an opportunity to test and challenge, where appropriate, views taken by your own team behind the scenes, as well as performing a multiplicity of other important functions, including updating and informing Core Participants and the wider public, as Mr Keith has done today, and to correct any public misconceptions in the way you and Mr Keith have done at the outset of today’s hearings.

The former US Supreme Court Justice Louis Brandeis once famously claimed that sunlight is said to be the best disinfectant, and this is one situation in which we consider that phrase to hold true. Exposing the Inquiry team’s developing thinking to the scrutiny of Core Participants, who can then make informed submissions to you as to whether they agree or disagree or urge an alternative approach, whether they have identified any gaps, and ensuring transparency to Core Participants and the wider public, these are all critical to public confidence in the Inquiry.

That’s a running theme through the submissions we have heard so far today but it also reflects submissions made yesterday, including by Mr Beer KC for NHS England, as well as by the TUC on multiple occasions, Bereaved Families and others.

Against that backdrop, my Lady, we note with gratitude Mr Keith’s indication this morning that the TUC’s suggestion of an additional preliminary hearing in summer for this module is a sensible one. We propose a May 2023 hearing for the reasons set out in our written submissions at paragraphs 23 and 24, as if the next hearing was in September, weeks before the proposed start date, there would be no meaningful opportunity for Core Participants to address you with adequate time to influence the direction of travel or this module, without adequate time to fill any gaps.

We are pleased to hear this suggestion has been heeded. We are grateful for that.

We agree with Ms Twite that this should be earlier than July, not only for the reasons she gives but also because, in the TUC’s submission, ideally this will take place prior to the Module 1 final hearings commencing so that there is timely clarity where there are currently, and we accept understandably, unclear lines as between Module 1 and Module 2. That is why we continue to request this takes place in May.

My Lady, the TUC also wishes to emphasise that we are very grateful to your Module 2 Inquiry team for the extremely helpful note provided in advance of this hearing. It’s given us significant detail on a range of matters. Annex A is hugely helpful to us and other Core Participants. Mr Smith’s annex B, the note on the listening exercise and commemoration, is very much appreciated by those I represent.

The TUC welcomes the approach taken by your team in this module and we ask that a similar approach be taken where possible in other modules. Finally in this vein, my Lady, we also note that the Inquiry has heeded the request made by the TUC in respect of a Rule 9 request for the HSE, and we are grateful for that.

Now, my Lady, we’ve made written submissions, which I appreciate you’ve well in mind. I am conscious I’m coming tenth in today’s very long running order. I’m mindful of the time.

Those two factors mean that, on a number of topics, we simply endorse and adopt the submissions of others. We don’t need to make supplemental submissions, or we rely upon our written submissions and don’t need to develop them in any detail orally.

In particular, my Lady, we agree with Mr Friedman KC on reasonable adjustments, and indeed the submissions made on this yesterday by Mr Burton KC, Mr Metzer KC and Mr Wagner in Module 3.

On Rule 9 requests, we stand by our written submissions and we endorse in particular the submissions made by Ms Morris, soon to be formally appointed King’s Counsel later this month. And were I in court in person, the TUC would of course be noting this and extending congratulations to her, so I hope you will forgive me taking the liberty of doing so in this online forum too, my Lady.

Baroness Hallett: Not at all, Ms Gallagher. I’m sorry, I didn’t know. I wish to record my congratulations to her as well.

Ms Gallagher: Thank you.

On both the shock of and the apparent relevance of the WhatsApp revelations overnight concerning Matt Hancock, we echo Ms Morris and Mr McCaffrey in particular this morning, and we agree with Mr McCaffrey’s submissions regarding the urgent need to clarify the extent to which Mr Hancock, and indeed other central Government ministers, have complied with their disclosure obligations.

On Rule 10 issues we agree with and support Ms Morris and Mr Friedman on their submissions today.

Disclosure and timeliness of disclosure, we have nothing to add to our written submissions.

On scope, in respect of the particular position in respect of Northern Ireland and the dividing line between Module 1 and Module 2 on the one hand, Module 2 and Module 2C on the other, please see, my Lady, our written submissions at paragraphs 11 to 16. The short point is that Northern Ireland is in a unique position because from January 2017 to January 2020 there was no functioning executive at all in Northern Ireland. It was governed in essence by civil servants in a caretaker capacity and the central Government, UK Government in Westminster, had particular obligations, as there was no functioning executive. And we remain unclear on the dividing line between Module 1, 2 and 2C.

We agree Government and support Ms Campbell KC’s submissions this morning and their joint written submissions by the Covid and Bereaved Families for Justice and the Northern Ireland group on these matters.

Now, it seems from the submissions made by Mr Keith this morning that there may not be a firm view on precisely when and where all these issues will be dealt with, and we understand that given the stage you are at with information gathering and the Rule 9 process. We ask to be kept updated and informed and to have the opportunity to address you in good time when further information has been obtained and a provisional view has been formed, and that supports are called for the next preliminary hearing to be prior to Module 1 final hearings starting.

In respect of Long Covid, my Lady, we agree with Mr Metzer KC’s submissions regarding Long Covid being a Governmental blind spot throughout and, indeed, since the pandemic. This is a key area of work for the TUC. Filling gaps in official provision.

Whilst I don’t address that in detail now, I flag it as a critical issue on which the TUC has been undertaking detailed work for some time and an area in which there are key questions for you, my Lady, regarding the need for recommendations for change, including why Long Covid is not recognised as an occupational disease or as a disability. These are matters we address in our Rule 9 statement for this module, due to be filed tomorrow, and we will, particularly in light of Mr Metzer’s submissions today, alert your teams to other potential evidence that could be gathered.

In this respect, we note that, given the reference by Mr Keith to the EHRC this morning, this is an area in which the EHRC’s position has been controversial and the TUC and others have not agreed with it.

We also, my Lady, agree with and endorse Mr Friedman’s submissions regarding the Governmental blind spot in respect of disabled people and what he powerfully termed as “afterthought syndrome”. We commend in this respect to the Inquiry the June 2021 research report on disabled workers’ experiences during the pandemic, which addresses how, before the outbreak of the pandemic, disabled workers already faced huge barriers getting into and staying in work, including significant difficulties in accessing reasonable adjustments, despite this being a legal duty for employers, and how the pandemic greatly exacerbated the barriers disabled people face.

As you know, not only have disabled people been disproportionately affected in terms of loss of life but pre-existing workplace barriers were accentuated by the pandemic and additional workplace barriers arose, particularly with working from home, and the TUC’s work mid-pandemic was conducted to better understand how pre-existing workplace barriers were affected and those matters.

I flag this because we agree with and support Mr Friedman’s submissions regarding informational gaps and the inadequacy of data gathering processes. That’s an issue for disability. It is also extremely relevant to other matters including race. And indeed these gaps have lay in part behind the TUC’s work during the pandemic, filling gaps where Government was not going.

We also, in respect of international law, endorse Mr Friedman’s submissions about international law standards and the CRPD, and we also draw to your attention Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights, on the right to health.

In that respect we commended to your Module 3 team yesterday a very recent – hot off the presses – article from the Human Rights Law Review, by a number of academics, led by Judith Bueno de Mesquita and Claire Lougarre, Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic.

My Lady, that was rather a long summary of matters which I am not addressing in detail. There were three matters I intended to address you on. One of them is funding, which I will take very, very briefly at the end. I’m not making substantive submissions in light of the indication but I will address you briefly on next steps.

The two points I do wish to address you on are commemoration and experts, including the need for expertise in structural racism issues.

First, my Lady, on commemoration and Every Story Matters, we are grateful to Mr Smith, in writing, Mr Keith this morning, for the detailed update, and the TUC will engage further with your team regarding these issues.

Given timings, I raise one point now. Friday, 28 April 2023 is International Workers Memorial Day. Held on 28 April every year, this day brings together workers and their representatives from all around the world to “remember the dead and fight for the living”.

As you will know from our previous submissions, over 15,000 people of working age died in the pandemic, with a particularly devastating impact on people from the black and minority ethnic community. Many of them were key workers in high-risk workplaces, sectors such as health, social care, transport, food processing and textiles.

You may recall, my Lady, that last year, on 28 April 2022, the TUC and Covid Bereaved Families for Justice issued a joint release calling on the government not to stand in the way of your Inquiry, and to implement in full your recommendations for the terms of reference, at that stage in limbo. And also fundamentally reminding us all that the voices of key workers and the families of those who contracted the virus at work would be central to understanding what went wrong and learning lessons for the future.

Multiple events took place that day across the UK, including ICTU’s memorial event in Belfast, memorial events held by the STUC across Scotland, including at the workers memorials in Glasgow, Inverness, Paisley and elsewhere.

In 2021, similarly, multiple actions took place across all four nations of the UK, focused on workers who had lost their lives during the Covid pandemic and as a result of the Covid pandemic, including a minute’s silence at midday and a joint meeting at the Covid Memorial Wall in London with the unions and with the Covid Bereaved Families for Justice. Civic buildings lit in purple in memory of those who died as a result of the pandemic, and wrath laying in multiple locations, including the workers memorial in Leeds, and the Archbishop of York offering a message of condolence to families of workers who had died.

My Lady, we ask, given its imminence, that your team give thought to marking that day this year, 28 April, and we are happy to work further with your team behind the scenes in respect of that.

I raise it because it is clear the next hearing of this module won’t be before 28 April. That’s why I raise it now.

The next issue concerns experts, including the need for expertise in structural racism. My Lady, in respect of experts, we raised one procedural matter at paragraph 30 of our written submissions. I won’t take you to that orally. We don’t pursue it further today. We will address any specific proposals once made by your team. You have our concern.

But more fundamentally, this is a module about high level decision making by Government at multiple levels, national, devolved, regional. In this module in particular, we submit it is of vital importance that there is an understanding regarding pre-existing inequalities, structural discrimination, Government decision making from an early stage and throughout the pandemic, and whether due regard was paid to protected characteristics and intersectional issues, and also the differential impact of Covid upon multiple groups.

I say shortly, the TUC supports Ms Davies KC’s submission seeking an expert in respect of the protected characteristic of sex, and the particular position of women and girls.

And the TUC renews the request for an expert to address issues concerning structural racism matters.

Now, we addressed you in part on this topic in respect of Module 3 yesterday, my Lady. We don’t repeat those points. We return to it in light of further reflection, Mr Keith’s submissions this morning, and additional matters arising in respect of Module 2.

We support Ms Morrison’s powerful submissions on this issue today, and I don’t repeat any points she’s made. We agree with her.

We hear Mr Keith’s reassurance this morning that, in respect of race, far from being ignored, this runs like a steel wire throughout the Inquiry process. We appreciate this is not a silo issue. It relates to each and every single aspect of the Inquiry. It’s relevant to pre-existing healthcare inequalities, relevant to why certain people do certain types of jobs, relevant to the pattern of deaths, relevant to how decision makers gathered information about patterns of infection and how they responded to that information. And we say they often didn’t respond to that information because they hadn’t gathered it in the first place.

Now, you may recall our submissions at the 31 October hearing in this module regarding London bus drivers, the early pattern which emerged regarding risks to London bus drivers, and in particular to black male bus drivers – it is pages 142 to 144 of the transcript – and Mr Dayle’s powerful submissions that day regarding emerging patterns at a very early stage about the particular adverse impact upon healthcare workers from a BAME background. My Lady, we say these issues are relevant to a whole series of matters throughout the Inquiry, often intersectional. May I give one example today?

One example oft overlooked, as some academic experts on clinical ethics have recently noted, concerns PPE and the tendency for equipment to be designed based on a prototypical Caucasian male face and body shape. That derives in part from rules of regulatory approvals, a background in the construction industry, and the requirement to test the filtration efficiency of respirator masks using a standardised head form known as a Sheffield head. Now, whilst that provides a consistent basis for the quantitative evaluation of masks, it may also mean in particular that women and staff members of non-Caucasian ethnicities experienced poorly fitting PPE, and evidence was emerging from a very early stage to suggest that that was the case, picked up by a small number of academic, not picked up through official channels at that stage.

That’s a key example of where your Inquiry team, despite their due diligence and the huge amount of work that they are doing, an issue like this may simply not be in their radar, because it’s not in their wheelhouse, it’s not their expertise. It is not the expertise of lawyers, it is the expertise of others.

Now, Mr Keith gave us a number of answers this morning answering the charge that race is being ignored in this Inquiry, and we fully appreciate that it is not. Our issues are different. We are not seeking a report on systematic racism in general. It is not an abstract issue, as Ms Munroe put it yesterday, we’re seeking expert input in the particular context of individual modules focused on your terms of reference.

Now, a number of points. First, Mr Keith this morning appeared to suggest that as, ultimately, questions concerning structural racism were questions of fact, as a result he said an expert may be of little utility because ultimately it is a matter of fact for you. But my Lady, look at CTI’s note, at paragraph 20 for this hearing, of the existing experts: Alex Thomas giving you evidence on decision making structures, Gavin Freeguard similarly giving you evidence of factual issues. Indeed, the same is true of experts in multiple contexts. When I sit as a coroner, cause of death is ultimately a matter for me to decide. Pathologist evidence is not determinative, I am the decision maker, but it is highly persuasive. And here, similarly, we say the question of whether there have been discriminatory practices, discriminatory decision making, whether there is structural racism, these are matters where you would be assisted by expert evidence.

Secondly, my Lady, we have no doubt that you and your Inquiry team have firmly in your mind the disparate impact of Covid. The statistics we do have give us some of that data. We appreciate some of those issues can be dealt with through, for example, considering primary contemporaneous evidence, witness evidence, questions of witnesses and indeed some academic analysis in articles already addressing those matters. We recognise that. But that type of evidence is limited and we suggest that an expert could add real value.

We also suggest an expert could be efficient and a timesaver, rather than non-experts in these issues trawling through detailed searches, attempting to identify relevant material.

And we say at its core understanding the what, the fact that there was an impact, doesn’t assist with understanding the why.

I will give one example on this, my Lady, before wrapping up this point. This is an example particularly relevant to Module 3. You heard me yesterday giving the stark statistic of whilst only 20 per cent of NHS staff are from BAME backgrounds, early analysis showed that they accounted for about 64 per cent of deaths amongst healthcare workers.

Now, there could be a multiplicity of reasons for that disproportionately high mortality rate amongst NHS workers belonging to non-white ethnicities. It could, for example, be linked to their base job roles, the fact that the majority of staff belonging to minorities have frontline jobs, a disproportionately high number of BAME staff members are in medical roles rather than non-medical managerial positions. It could be linked to other factors, such as discriminatory deployment to areas with potentially high virus exposure or, indeed, to a tendency to underlying health conditions.

Now, it is notable that in 2020, surveys that were conducted asking BAME staff why they believed there was such a stark disproportionately high death rate amongst BAME workers came back with this answer: healthcare staff belonging to black, Asian or ethnic minority background, when asked for their opinion about this disproportionately high mortality in NHS workers who were non-white, the most common reason they gave in surveys was deployment in areas with higher potential for exposure to the virus. In other words, their belief at the time was that this was due to discriminatory deployment.

Now, I have no idea, neither do you or your team, at this stage, whether that suspicion is correct. I do know that if we rely on evidence from Kemi Badenoch, then Government minister, marking her own homework, the statistics which were gathered by the government, and looking simply at the headline figures at the end, you will not be able to confidently answer that question.

An expert could even assist you, my Lady, in advising the Inquiry on how to probe that issue, how to conduct the process of the Inquiry itself.

The central issue here is the very statistical gap in this field, which links to the CRDP point made by Mr Friedman, links to the very reason why the TUC undertook such detailed work on this issue at an early stage, concerned that this was a blind spot from the Government. Look at the dying on the job report of June 2020, detailed questionnaire to TUC members, July 2020, and even the TUC setting up a race task force in September 2020. So analysing the adequacy of the available statistics, the adequacy of the processes of gathering information and why some information was never gathered and was never available, all those of those issues go to why an expert on this topic is central, and we say it would be a fundamental mistake to overlook that and to proceed without expert evidence.

We have heard the long list from Mr Keith this morning about other matters, including the expert reports from Professor Marmot, the renowned epidemiologist, Professor Clare Bambra, professor of public health, and other evidence. None of that goes to this central point. It doesn’t answer Ms Morris this morning. It doesn’t answer us yesterday and today. It doesn’t answer Mr Leslie Thomas and the many others who have addressed you on this point.

Finally, my Lady, in respect of funding, may I just put on the record we support the Southall Black Sisters’ submissions that have been made, and we support the application for funding from Solace Women’s Aid. We are deeply concerned, for the reasons we have set out in our written submissions, about the approach taken to funding. I won’t address this further. I am grateful for the indication that it’s going to be looked at afresh. And we would welcome the opportunity, my Lady, to file further submissions with you on this point about why we say there are special circumstances for the TUC and, indeed, there are special circumstances for Solace Women’s Aid.

Unless I can assist you further, my Lady, they’re our submissions.

Baroness Hallett: Thank you very much indeed, Ms Gallagher. As ever, the matters you raise merit very serious consideration and that’s what they will get.

May I also thank you for your opening remarks about the Inquiry’s independence. I’m grateful not for my own sake – I confess I’m used to ill-informed comment and criticism – but I say that for the sake of all those who suffered during the pandemic and who are looking to this Inquiry to produce a record of what happened during the pandemic of the dreadful impact on so many of them, to answer their questions where we can, and to learn lessons. They need to know, and I hope they heard your remarks, that this Inquiry is firmly and fiercely independent, and it will remain so.

Thank you, Ms Gallagher.

Ms Gallagher: Thank you, my Lady.

Baroness Hallett: Mr Dayle.

Submission by Mr Dayle

Mr Dayle: Good afternoon, my Lady. I propose to address you on three areas in what I expect to be a fairly brief presentation.

Firstly, I will seek to remind you or perhaps reinforce the matters of principle that are the foundation for FEHMO’s involvement in this Inquiry. Secondly, I will invite you to accept some core lines of inquiry which we consider should obtain heightened scrutiny in Module 2 and, thirdly, make some comments on procedural matters in this module.

In the first preliminary hearing of Module 2, FEHMO submitted that a comprehensive investigation into the Government’s decision making processes and policies was necessary to uncover any systematic failures that may have contributed to the disproportionate impact on minority healthcare workers and their communities.

We urge that a thorough and fearless exploration of these issues was essential for the Public Inquiry to fulfil its mandate and we identified structural racism, institutional racism and health inequality as being important considerations for the Inquiry’s investigations.

FEHMO seeks to reinforce the submissions in this second preliminary hearing. Our position is rooted in the UK Government’s duties under Article 2 of the European Convention on Human Rights. Under the Human Rights Act, the State has a general systemic obligation to put in place a framework of laws, precautions, procedures, training and means of enforcement which will to the greatest extent practicable protect life.

The UK Government held this systemic obligation regarding its decision-making during the pandemic. There was a duty to ensure that whether right to life of its citizenry was at stake, the Government would take positive and protective steps to safeguard those lives.

My Lady, we acknowledge the comments made by you and Mr Keith KC about the work that has already been undertaken by this Inquiry, that appears to be alive to the role of structural racism, institutional racism and health inequality for Module 2 of your investigations.

We note Ms Twite’s distinction between structural racism and institutional racism which is well made.

No doubt your Inquiry appreciates the strength of feelings expressed by many of the Core Participants at yesterday’s Module 3 hearing on these issues and indeed those expressed by others who have spoken before me.

Given that the words used before are still fresh in all our ears, it would serve little purpose for me to repeat them and, in any event, there now appears to be an understanding in principle on the relevance of these issues in Module 2. Nevertheless we wish to reiterate that answers must be sought as to how and why central and local Government decision-making failed to properly consider or even anticipate the issues of inequality that were triggered by the pandemic and why it failed to protect against the disproportionate deaths and poor health outcomes suffered by ethnic minority healthcare workers and their wider communities.

We wish to invite you, my Lady, to place heightened scrutiny on three areas in Module 2: (1) implementation of Government pre-planning; (2) the existing data architecture in public health; and (3) the contemporaneous response to the disproportionate death rate in Black, Asian and minority ethnic communities.

Importantly it must also be said that this Inquiry’s investigation should concern decisions that were made, as well as decisions that ought to have been made but were not. Firstly, in relation to implementation of Government pre-planning, FEHMO submits that Government emergency planning and work in building pandemic resilience should have envisaged that health inequality, occasioned by structural racism and wider issues such as austerity, would exacerbate vulnerabilities and probably result in disproportionately adverse health outcomes within communities of colour. And we trust that is this will be explored within the remit of Module 1.

It follows therefore that such Government pre-planning should have been evident in decision-making given the high percentage of certain illnesses within particular ethnic and racial groups that would heighten vulnerabilities to respiratory illnesses and the high percentage of Black, Asian and minority ethnic staff that are in public facing roles, as you have heard, that were likely to be put at higher risk of exposure of SARS COV2 and other respiratory viruses.

The crucial line of inquiry which we urge on you, my Lady, is were there any specific measures taken by the Government which anticipated the disproportionate impact of Covid-19 on Black, Asian and minority ethnic communities and healthcare workers? If so, what were they and were they taken in a timely manner?

Secondly, the Inquiry must examine the existing data architecture in public health at the peak of the pandemic and here I must pause and acknowledge the comments made by Mr Keith, who appeared to accept our written submission on this point. It is important to establish whether UK laboratory, field modelling and case studies at the onset of Covid included references to race and/or ethnicity and, if not, why not.

This is critical because the first public notice that there were disproportionate deaths from Black, Asian and minority ethnic communities appears to have been purely anecdotal, escalated only through campaigners and news reports rather than from agencies of Government. So the fundamental question for the Inquiry here is: was there any unified national system of data capture that could apprehend rates of infectivity or death rates based on race and/or ethnicity and if no such system existed, how was this data pursued and obtained?

Thirdly, the Inquiry must closely examine the contemporaneous response to disproportionate death rates in Black, Asian and minority ethnic communities. It soon became patently clear in early 2020 that there was as disproportionately high rate of deaths among Black, Asian and minority ethnic healthcare workers and in their communities. This Inquiry must interrogate what, if any, steps were taken to address this contemporaneously and precisely at what points. Was there a coordinated national response to the disproportionately high number of deaths in Black, Asian and minority ethnic communities and those workers. If there was no such coordinated national response, what was the rationale for the failure to act?

My Lady, I will now make some observations on a few procedural matters. So as not to repeat submissions that have been made by those before me, I will very briefly point out that, on the issue of participation, we wish to support the submissions made by Ms Morris on behalf of the CBFFJ on the issue of participation by Core Participants and our ability to ask questions of witnesses in the Rule 10 process.

We repeat the requests made to date for disclosure of Rule 9 requests to Core Participants on the basis that it will allow Core Participants to scrutinise and identify any potential gaps in the evidence requested in a timely manner and we have set out our position in our written submissions and we need not rehearse them in these submissions.

We join the calls requesting Core Participants to be afforded the use of the more user friendly disclosure platform, that issue has been canvassed already and we associate ourselves with the submissions that have been made on this point before. We note the Inquiry’s widening approach on redactions and plans to use auto redaction technology with the intention of speeding up the process.

Now let me say that we appreciate the considerations that drive the need for redactions, as Mr Keith outlined this morning with a great deal of care. It still bears saying, however, that with the removal of individual judgment, there remains a real risk that the process may lose important information. So we urge some amount of caution proportionately in this approach, my Lady.

On the question of timetabling we also share the concerns of the bereaved families group which has already been made about the intended duration of Module 2. We join in the observation that it might well be insufficient for a full and effective investigation, given the subject matter and anticipated witnesses and we ask that this is kept under review.

On the issue of experts, we wish to renew our request for disclosure of expert instructions that were served on the proposed experts. In the alternative, at the very least, we seek confirmation that the named data expert – and I have spoken about the importance and the centrality of the issue of data capture to FEHMO is concerned – that this expert will be addressing the issues that we have raised of available data in respect of race and/or ethnicity. And on the question of the expert on structural racism, we wish to associate ourselves wholly with the powerful submissions of Ms Gallagher.

We disagree with the earlier remarks by Mr Keith and say that this Inquiry would be assisted enormously by the engagement of such expertise. Unlike what was suggested this morning by Mr Keith, an expert on this issue, especially one that has studied structural racism in the context of healthcare, would not be a substitute for findings of facts on relevant issues in this Inquiry by you, my Lady. Rather it is hoped that an expert on this subject can give the Inquiry the benefit of rigorous academic study on the ways in which different societal factors, including decisions by Government, may combine to result in adverse racialised outcomes.

On the issue of parliamentary privilege we note Mr Keith’s observations and assurances on the scope of parliamentary privilege and its implications on the Inquiry’s investigations.

As a matter of principle, and largely as a reaction to Mr Keith’s note on this matter, we question the premise that as a statutory Public Inquiry with the power to examine witnesses under oath, this Inquiry’s use of a statement made during proceedings in Parliament, could be such that the statement is impeached or questioned given: (1) it is always critical to identify the purpose for which evidence or proceedings in Parliament is adduced before privilege attaches; (2) this Inquiry is prohibited from ruling on or determining any person’s civil or criminal liability; (3) the policing of the boundaries between permissible and impermissible uses of parliamentary materials remains an active area; and (4) we are not aware of any decided case which supports the broad brush application of privilege in a statutory Inquiry.

We welcome Mr Keith’s clear indication that the Inquiry will take all practical steps to work around any perceived limitations arising from parliamentary privilege and the assurance that the issue should not impact on disclosure of parliamentary material to Core Participant. However, should any issues arise during the course of Module 2, we will look forward to the opportunity to make further submissions as soon as possible.

On the issue of the listening exercise, Every Story Matters, the FEHMO members are open to participating in Every Story Matters. In our written submissions we said that we are working to understand more about how information will be fed into the planning for and carrying out of detailed investigations under the modules before committing the time involved.

We ask questions about transparency about the process, including who is involved, what steps have been taken to consider any conflict of interests; what areas of expertise any appointed suppliers possess and details as to how this exercise will operate and meaningfully feed into the modular investigations and practice. We welcome Mr Keith’s update this morning and look forward to even more information on this subject going forward.

Finally, FEHMO is conscious that indications have been given previously and this is not a matter that was raised in CTI’s note, that you, my Lady, will be assisted by panel members to make sure the Inquiry has access to the full range of expertise needed to complete its important work.

FEHMO remains of the view that this is a sensible and beneficial process and would be grateful for any update on this matter in the future.

So, unless I can assist further, those would be my submissions at this time, my Lady.

Baroness Hallett: Thank you very much Mr Dayle. A number of interesting points that you make and I shall consider them all very carefully. In relation to the last point you make about panel members, I can answer that simply; it is not a decision for me and I wasn’t the person who made that comment, as you know, because it is in your written submissions. That was the Prime Minister of the day, Mr Johnson.

I’m afraid I can’t provide you with any kind of update, it is not in my power to either grant or decide not to grant panel members. Thank you very much indeed.

Right. Mr Allen you have been waiting very patiently. I’m sorry you are the very last today. Ms Gallagher has been in this position, so she understands.

Mr Allen: Thank you very much my Lady and somebody had to go last and so I hope you will be pleased to hear that I have relatively little to say.

As you know, I represent the Local Government Association, which is the membership organisation for all but two of the 333 principal local authorities in England and all the 22 Welsh local authorities.

We have put in a submission for today’s preliminary hearing which is limited to the issues of expert evidence and it was very helpful to hear this morning from Mr Keith in relation to both of those, which will enable me to make these submissions pretty shortly to you.

The two areas that we put into our submission concerned the expert evidence in relation to data management and the expert evidence that we suggest you will need in relation to the delivery of social care during the pandemic.

I’m going to take the second point first because it can be dealt with very shortly. Mr Keith says that that’s not something of concern at present because it is intended to have a dedicated module on social care in due course.

We understand that point and respect it, but we do think that it highlights yet again an issue which I am sure you are aware of, which is where the borderline will lie between different modules. At present the provisional outline scope for Module 2 states that it is proposed to examine the Government’s guidance and advice for health and social care providers.

Now, local authorities across England and Wales are highly involved in that process, particularly because of the social care responsibilities that local authorities have under the Care Act 2014. While they are not directly involved in the running of private healthcare – social care organisations, the responsibilities for allocation and so on are an important part of the work that they do.

So, understanding where that line lies, I think, is a matter which will need to be hardened up very, very soon indeed, in order to make sure that the focus in Module 2 and the focus in the later module on social care is well understood to all participants.

But, on the basis that there will be consideration in a future module, we don’t press the point about expert evidence on that at this stage.

The more complex point which again Mr Keith addressed very shortly and we are glad that he did, concerns the decision that has already been taken about expert evidence which is being sought from Gavin Freeguard.

The Local Government Association recognises Mr Freeguard as an appropriate expert and we are very glad to hear that he has been appointed. The concern that we have is that the CTI’s note tells us that Mr Freeguard has been instructed to report on the access to and use of data by the UK Government and devolved administrations during the Covid-19 pandemic.

What it doesn’t say is that that specifically will involve looking at the relationship between central Government and local Government in relation to the use of data. Now, data management and interoperability between central and local Government was critical to finding a path through the pandemic.

The role of principal local authorities in relation to many aspects of the management of the pandemic and indeed finding that successful path is, I think, well understood and it is certainly set out in the draft witness statement that has already been submitted to the Inquiry and which is currently being considered by the Inquiry team.

I want, if I may, just to highlight three headings where this is critical. I do that because I recognise Mr Keith’s statement this morning that, in the instructions to Mr Freeguard, the position of local authorities will be considered. We don’t see those instructions as a decision has been taken already not to share instructions with Core Participants.

But the three headings are: Data in relation to clinically extremely vulnerable people; we need to be sure that Mr Freeguard looks at that data. I hope you can still hear me. Data in relation to Covid-19 cases and data in relation to vaccination. I hope my Lady heard that. I will refer to it again. Clinically extremely vulnerable, Covid-19 case data and vaccination data. The way in which that data was shared with local Government is something that we request is specifically raised with Mr Freeguard so that it can be covered in his expert evidence.

My Lady, those are the submissions that I want to make today on behalf of the Local Government Association. In a sense they go to the management of getting that evidence in due course and it is proposed that the Local Government Association should speak to the Inquiry team about it. My Lady those are my submissions.

Baroness Hallett: Thank you very much indeed Mr Allen and I did catch what you were saying at the end, although you were slightly breaking up.

As far as the overlap between modules, I do take your point and it is a point well made and it is something we are going to require help from all of the Core Participants to ensure that we don’t have matters falling between the gaps, as I said earlier.

As far as your point about the instructions to Mr Freeguard, I will take that matter up with the Inquiry team and see what’s happening. Thank you very much indeed.

Mr Keith.

Mr Keith: My Lady, you will be very pleased to know that I have very little to add and I seek only to make two points further by way of oral submissions.

The first point concerns WhatsApp messages. On the subject of WhatsApp messages, I wanted to dispose of any suggestion, which would be unwarranted, that we were not aware of the WhatsApp messages which reference has been made in the press today or any suggestion that we are not in fact already significantly engaged in the process of obtaining WhatsApp messages for ourselves.

The significance of WhatsApp messages has long been known to us and we have been making Rule 9 disclosure requests for WhatsApp messages since September of last year. Those requests have in fact been made across Whitehall to Government departments, individual ministers, civil servants, scientists and specialist advisers.

It is clear from what I have said that what we have requested goes very much further than the messages which are the subject of today’s reporting. We obviously cross-reference details of the WhatsApp groups and messages that we receive in order to identify gaps in that material and where that appears to be the case we then make further questions to fill those gaps.

So we have already received messages from over 60 WhatsApp groups and there will be many more to come, I have no doubt. That of itself provides an answer to those who suggest that the Inquiry should go even faster because no sensible or proper public hearing can be held in which witnesses are examined about emails or WhatsApps and the documents in their possession, until we have those materials gathered before us and that is a process which takes obviously a little more time.

The second point concerns a point that Mr Friedman KC made. He stated in terms that we had reached the stage of deciding which witnesses to call. In fact, if I may correct him, we have not.

We cannot make decisions about which witnesses to call until of course we have received all the documents; we have received the statements in response to our Rule 9 requests and we have considered and refined the issues to which those materials give rise. That is plain commonsense.

And that is why, my Lady, as you know, the list of issues has to be drawn up, refined and of course sent out to the Core Participants before we can make a sensible decision about the witnesses that we intend to call because we must permit the Core Participants the ability to be able to make their own submissions to us in relation to the detail of the list of issues.

When that stage comes, of course, we will welcome all the observations and comments on the list of issues and that is why our list of issues, contrary to what Mr Friedman suggested, will only necessarily be provisional because it cannot at its first stage take account of what is yet to come by way of help and the Core Participants.

My Lady, those are the only two points that I wish to raise by way of reply submissions this afternoon. That concludes everything that the advocates would wish to put forward.

Baroness Hallett: Thank you very much, Mr Keith. Thank you to everybody who has been attending online and stayed with us during the course of another long but important day.

I’m extremely grateful to everybody, as I said at the beginning, for all their submissions and I shall bear them all very much in mind. If I have to make any rulings as opposed to issuing directions about preliminary hearings and the like, I will make any

ruling as soon as I can but obviously I want to reflect

on a number of the issues that have been raised. Thank

you everybody.

(4.30 pm)

(The hearing adjourned)