Transcript of Module 2 Preliminary Hearing on 6 June 2023

(10.30 am)

Introductory Remarks by the Chair

Lady Hallett: Good morning, everyone.

This is the third preliminary hearing for Module 2 of the Covid-19 UK Inquiry, focusing on core decision-making. It is taking place in Dorland House, Paddington. Dorland House will be the venue for the London-based hearings at which evidence is heard and which we will start next week with Module 1, that will be focusing on resilience and preparedness. Other hearings will take place in the devolved nations.

The Inquiry team has spent a great deal of time and resources finding and equipping a suitable venue in London and is currently exploring options for Northern Ireland, Scotland and Wales. I hope that Dorland House will be adequate for the vast majority of those attending hearings in London. It isn’t perfect but we couldn’t find a venue that was perfect, available for the time that we shall need it, and that would not cost the taxpayer an exorbitant sum of money.

We have done everything we reasonably can to make the hearing centre as accessible as possible and to allow a reasonable number of people to attend in person.

For those who are unable to attend in person but wish to follow our proceedings, you’ll be able to do so online. More work will be done on Dorland House this summer and if there are any further reasonable adjustments that need to be made, we should be happy to consider them.

In preparing for the evidence, for the hearing of evidence in Module 2 due to take place this autumn, the Inquiry team has been working extraordinarily hard gathering all relevant and potentially relevant material.

As has been widely reported in the media, an issue has arisen between the Inquiry and the Cabinet Office as to who decides what is relevant or potentially relevant.

Mr Keith: My Lady, I’m extremely sorry to rise to my feet. There may be a technical problem with the transmission of your opening remarks.

Hearings Manager: No, we’re fine.

Mr Keith: Ah, no, it’s been resolved. There we are, I’m very sorry for interrupting you.

Lady Hallett: Not at all, thank you.

I’ll begin again.

As has been widely reported in the media, an issue has arisen between the Inquiry and the Cabinet Office as to who decides what is relevant or potentially relevant.

I issued a notice under section 21 of the Inquiries Act 2005 making it clear that, in my view, it is for the Inquiry Chair to decide what is relevant or potentially relevant.

The Cabinet Office disagrees, claiming they are not obliged to disclose what they consider to be unambiguously irrelevant material. They invited me to withdraw the section 21 notice. I declined, and they are now challenging my decision to withdraw the notice – or to decline to withdraw the notice in the High Court by way of judicial review.

With litigation pending and as the decision-maker I can make no further comment.

Mr Hugo Keith King’s Counsel, Counsel to the Inquiry, will now outline the steps that have been taken so far, and the issues that arise for my consideration today. I shall also hear from those of the core participants who wish to make oral submissions. I am, as ever, very grateful to all those who have made written submissions. I have read them carefully, and I will bear them very much in mind.

Given the amount of work we must get through today, I invite the core participants who do make oral submissions to focus on the most important aspects of their submissions and not to dwell on matters that can be dealt with in writing and do not need to be rehearsed orally.

So with those words, I now ask Mr Keith to tell me what is happening today.

Statement by Lead Counsel to the Inquiry

Mr Keith: My Lady, thank you very much.

I don’t propose to reintroduce the core participants or their legal representatives in the interests of time, but there remain 39 core participants in Module 2 and all bar three are legally represented. We’ve received 14 sets of written submissions for today’s hearing, and I believe that you’ll be hearing from 13 separate legal representatives.

We are of course very grateful to all the core participants who provided written submissions for having given us their observations and their insights.

My Lady, may I start with the issue of panelists.

On 27 April 2023, the Prime Minister announced in a written statement to Parliament that he had decided that the Inquiry would be more efficiently and swiftly conducted if you were not to sit with a panel. The Prime Minister referred to a number of matters that he had taken into consideration. He observed that it was in the public interest that the Inquiry be thorough, rigorous and comprehensive, but also that it delivers its report without excessive delay. My Lady, I know that you’ll recall that he referred to the fact that you have a number of mechanisms at your disposal to enable your Inquiry to gather the breadth of evidence and experiences needed to deliver its work, both effectively and efficiently, and also to enable you to make findings and recommendations as quickly as you reasonably can.

Those mechanisms include your ability to appoint scientific, economic and other experts to prepare reports, those reports would obviously be published, they allow you to call those experts to give evidence publicly and to guide you in your endeavour. They also include the gathering of views from the public through Every Story Matters.

That decision, my Lady, was one entirely for the Prime Minister to decide, because he is the sponsoring minister for this Inquiry. It was not one for you, and so the advancing by myself of submissions on this issue would not appear to serve much purpose.

The Prime Minister did, however, consult you. He did so because he was obliged to do so under section 4(3) – section 4, subsection 3 – of the Inquiries Act 2005. However, it would not be right, and nor is it necessary, for the Inquiry to disclose the contents of that consultation, and so I will say no more about that issue.

I then turn to the issue of the list of issues for consideration in this module, Module 2. In August 2022, the Inquiry published its provisional scope for Module 2. Since that date, your legal team has been conducting an investigation within the remit of that published document. You directed at the last preliminary hearing that the Inquiry circulate to core participants a more detailed list of issues. That list was issued on 27 April, and we received back the core participants’ comments on it on 11 May. We’re very grateful to them for their insightful and constructive comments.

My Lady, there were a very great number of comments, however, and so we are still working through them all, but all the points are being considered and I want to give that assurance.

An additional important factor in this module is the need to ensure, in addition, an appropriate degree of consistency with the issues being ventilated in Modules 2A, 2B and 2C, and that also includes being sighted on the observations that the core participants may wish to make in those modules. Observations are due from the core participants to Module 2C by 13 June, and so allowing for time to consider both those observations and also to debate them between the module teams, we don’t believe that the list of issues for this module can be published before middle or late July.

Given the very large number of points which have been raised in the submissions from the core participants, I don’t propose to address all of them, but may I confine myself to just four or five of them, which appear to us to be of the greatest importance.

We acknowledge a specific request concerning the specificity to be given to the consideration of vulnerable and at-risk groups in the process of core political and administrative decision-making, including the consideration of the needs of deaf and disabled people, those with pre-existing health inequalities and those otherwise vulnerable to Covid-19 and long Covid. We are giving careful thought to how those matters can be expressed, perhaps better expressed, in the written list of issues. But I want to assure all the core participants that those matters are very much at the forefront of our minds and are already under consideration.

Secondly, a number of the core participants have raised the issue of so-called austerity policies and the way in which the Inquiry intends to address those policies and their impact on the core political and governmental decision-making that is the heart of Module 2.

Our provisional view, my Lady, is that such matters go more naturally to the question of resilience and preparedness, which, as you’ve said, is a matter being addressed in Module 1, but we intend to reflect further on that and we will report back to the core participants in due course.

Thirdly, in relation to Northern Ireland, we’ve asked in a number of Rule 9 requests in Module 2 about the role that the Secretary of State for Northern Ireland and the British-Irish Council has played in facilitating intergovernmental relations during the pandemic and also about the co-ordination of the governmental response to Covid across the four nations.

Module 2C will be exploring those matters in the context of the response to Covid in Northern Ireland, of course, and as well it will be looking at issues relating to the north/south relationship. So matters which directly impact upon Northern Ireland are better considered in the rubric of Module 2C.

Fourthly, a point has been made by a number of core participants that we have afforded a disproportionate amount of attention to the United Kingdom Government and its affairs in Module 2 and that there is a bias towards focusing on Westminster.

My Lady, Module 2 will be concerned with the United Kingdom Westminster matters, including of course the Westminster end of communications with the devolved administrations. So there is bound to be a concentration of attention on the United Kingdom by contrast to Module 2A, 2B and 2C, which are the analogous modules for Scotland, Wales and Northern Ireland.

Nevertheless, we have issued Rule 9 requests to all the first ministers and Northern Ireland’s former Deputy First Minister, asking them to address their engagement with Whitehall in their responses and to provide all key supporting materials. We expect those statements to be thorough and to provide you with all the relevant supporting materials that you would need.

Lastly, by way of this introductory review, one core participant has advanced submissions concerning the extent to which Module 2 will cover the closure of schools. Of course there will be exploration through the high level political decision-makers of the broad reasons why school-related decisions were taken as they were, but the detailed examination of the merits of that process and of the operational impact of decisions to shut schools can only take place in the later education module.

Finally, in relation to long Covid, a group of core participants have asked us to address the extent to which long Covid was considered by decision-makers at the time. That will be considered in the course of Module 2, because of course it goes to the merits of that decision-making. But the detailed consideration of long Covid and its medical aspects is reserved to Module 3, the healthcare module.

My Lady, may I then turn to the issue of the Rule 9 requests which have been issued by the Inquiry. An enormous amount has been done since we last met. The Inquiry has worked extremely hard to ensure that it and the core participants can be ready for the public hearing scheduled under this most demanding of timetables. Tens of thousands of documents and exhibits have been received from document providers so far, although not all of them, of course, are relevant and disclosable.

My Lady, may I 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 the array of documentation that has been received. As of yesterday, almost 350 formal requests for evidence under Rule 9 have been sent out relating to entities, persons and organisations in Module 2 alone. Almost 100 more have been sent out to entities and persons where the issues raised in those Rule 9s spanned not just Module 2, but Modules 2A, 2B and 2C also.

To give a sense of the breadth and width of your Inquiry’s reach, the Rule 9 requests include 38 requests to government departments, government bodies, arm’s length bodies and a variety of associations, 11 to regional mayors, 12 to ministers, including the Prime Minister Rishi Sunak, former Prime Minister Boris Johnson MP, Dominic Raab MP, Penny Mordaunt MP, Matt Hancock MP, Liz Truss MP, Kemi Badenoch MP and Michael Gove MP.

We have issued requests for witness statements from the former First Minister of Scotland, Nicola Sturgeon, the former First Ministers of Northern Ireland, Baroness Foster and Paul Givan, former Deputy First Minister of Northern Ireland, Michelle O’Neill, and the First Minister of Wales, Mark Drakeford.

Rule 9 requests have gone to chief medical officers, their deputies and their predecessors, and we’ve requested witness statements from persons who held positions in the Cabinet Office and Number 10.

They include, my Lady, former and current Cabinet secretaries, senior civil servants, chiefs of staff, private secretaries, advisers and other civil servants.

In September of 2022, Module 2 also issued 200 Rule 9 questionnaires to participants of SAGE and its sub-groups and 17 Rule 9 questionnaires to members of Independent SAGE. We have issued 19 more detailed Rule 9 letters to a number of those individuals as well as to a number of other scientists.

We have also sent a very significant number of impact questionnaires to bodies and organisations representing individuals who might be considered to have been at greater risk or vulnerable. My Lady, that includes groups representing the bereaved, women, children and young people, ethnic groups, those suffering from health inequalities, including long Covid and mental health issues, older people, those with disabilities, members of the LGBTQ+ community, workers’ groups and health professionals.

The issue of inequalities, since this has been raised by the core participants, has been included in practically every Rule 9 request issued by Module 2, including to persons involved in the decision-making and their advisers. We’ve also sent Rule 9 requests to the Cabinet Office, Equality Hub, Liz Truss, former Minister for Women and Equalities, Kemi Badenoch MP, as I’ve said, Justin Tomlinson MP, the former Minister for Disabled People, and a number of other organisations concerned with equalities and human rights.

We have also sent a number of requests with a focus on long Covid, the government’s understanding of that condition and the impact that that might have had on their decision-making.

My Lady, the number of Rule 9 requests and the wide range of organisations, entities and people who have received such requests, although highlighting the scale of your task, provides ample reassurance that we have cast our investigative net sufficiently widely.

In addition, we have accepted additional suggestions from core participants as to who should receive a Rule 9 request and we have acted upon those suggestions.

We are very grateful to all those who have engaged with the requests and who have provided statements.

A significant proportion of those requests, as I’ve said, have been made to government departments. In the case of the majority of those departments, my Lady, it’s right to say that the government departments concerned have responded under demanding timescales, and having contributed a considerable amount of work.

Those government departments and their legal teams have worked very hard to respond to the requests, and we’re very grateful to them for that co-operation.

But I must raise with you today some aspects of the disclosure exercise that has been conducted by a limited number of government departments.

The principal position, and it’s the position that we have applied in relation to every government department recipient, is that each and every document which is called for in response to a Rule 9 request must be provided to your team in clean, unredacted form. The document or part thereof is then reviewed by the Inquiry and irrelevant information, including to a very large extent personal data, is redacted by the Inquiry team.

The process does allow for the provider of the documents to review those redactions and make a claim for further redactions to be applied. The Inquiry legal team then considers all the additional requests and either makes the additional redactions or rejects them with reasons. All this is done in accordance with the published redaction protocol made available by the Inquiry, and that protocol has been on the website since October last year.

I must make plain that each redaction which the Inquiry, as opposed to the material provider, makes is provisional and therefore it is subject also to change as a result of any further scrutiny of the evidence by the Inquiry legal team and any matters raised by the core participants following the disclosure to them in the first instance of the documents.

Given the relatively short period of time before the start of the substantive hearings, delays in that difficult and burdensome process had the potential to disrupt the Inquiry’s process unless such problems are swiftly resolved, and it’s therefore appropriate that I tell the core participants something more about the problems that we’ve encountered.

First, a considerable number of the draft statements submitted have either contained insufficient detail or did not address all the matters raised in the Inquiry’s Rule 9 request, so the Inquiry – as with Module 1 – has asked many of the witnesses by way of response to expand upon the matters raised in their draft statements. The work required to consider those draft statements and to send requests back for further detail has an obvious impact upon the workload of the Inquiry and upon the process of disclosure.

We do consider, however, that overall the timetable will not be significantly impacted, and we are confident that the vast majority of the final signed statements and exhibits will be disclosed to core participants before the end of July 2023, this July.

Second, in respect of a number of entities, there has been a failure to respond in good time to the Rule 9 requests, necessitating repeated extensions to deadlines. We are on top of the issue, but witness statements from a number of key government witnesses are due to be provided to the Inquiry in the coming days and weeks on the expiry of many of those deadlines. So I wish to emphasise the absolute need on the part of those government departments to comply with these final deadlines given the diminishing time before the substantive hearing.

Further requests for extensions are unlikely to be granted.

I would then like to draw your attention to five specific matters concerning disclosure, in the majority matters which the Cabinet Office, which is represented today, is invited to respond to you upon.

The first issue concerns the WhatsApp process. The Inquiry has made requests for potentially relevant communications sent via WhatsApp from almost 30 Cabinet Office witnesses. The vast majority of those requests were made in December 2022 and January 2023. Whilst it’s understood that a number of those witnesses do not currently hold such materials, and of course we’re seeking explanation from them as to why that is so, there is a lack of certainty about what potentially relevant content is in fact held by the Cabinet Office and which will therefore be provided to the Inquiry in due course.

We have received WhatsApp material from Mr Johnson and from two other individuals, and all that material has had redactions applied to some of the content. But we do not know how many more individuals are in a position to give us WhatsApp material relating to their communications, which material may be in the possession of the Cabinet Office.

In addition, we have very recently identified that the Cabinet Office is not alone in this position. The Foreign, Commonwealth & Development Office has supplied to the Inquiry potentially relevant WhatsApps from two of their special advisers, many with extensive redactions made to that material on the basis of relevance. This was identified too late to invite the Foreign Office, who are core participants, to attend today to explain their position to you, but of course on the basis that they’re following your proceedings, my Lady, may we make clear that we expect them to provide unredacted WhatsApp material without delay. If of course the judicial review claim, to which I’ll come in a moment, is dismissed.

It may be worth pointing out that the Department of Health and Social Care, by contrast, has to date provided much fuller disclosure, including Mr Hancock’s WhatsApp messages without any redactions at all for relevance being applied to that material, and so we would of course invite the Foreign Office and the Cabinet Office to pay close regard to the position adopted by the DHSC.

The Cabinet Office is required to remedy immediately all overdue disclosure of potentially relevant WhatsApp materials both relating to group messages and one-to-one threads with other key individuals.

The Cabinet Office has also been asked for but is yet to provide an updated schedule of all the potentially relevant WhatsApp materials held by all of its witnesses. So, my Lady, no doubt you’ll be hearing from Mr Chapman on behalf of the Cabinet Office in due course on that issue.

The second issue concerning the Cabinet Office relates to Google Spaces. The Cabinet Office drew to the attention of the Inquiry in January the existence of Google Spaces as a forum for key individuals to have communicated during the response to the pandemic. We agreed that this was potentially a relevant source of evidence, and we requested that the Cabinet Office identify potentially relevant Spaces. We made it clear that we wished to assist the Cabinet Office in this task by helping them to prioritise it within the disclosure. A significant number of calls for formal updates have been made, and deadlines have passed unanswered.

Last week, the Cabinet Office provided a schedule of potentially relevant Google Spaces along with a list of membership of each group, the time period during which the groups were active, and an indication of volume.

Whilst it’s regrettable that so much time has elapsed before reaching this point, we are nevertheless grateful for that schedule, but we’ve identified a number of groups which need to be prioritised for extraction and disclosure.

My Lady, in relation to the material on Google Spaces, the same issue of course arises as it arises in relation to the WhatsApps, the diaries and the notebooks relating to Mr Johnson. For obvious reasons, we maintain that that material, the Google Spaces material, must be provided to the Inquiry without redactions, without a relevancy review being undertaken by the Cabinet Office.

Our position, as you know, and it is your position, that any relevancy review and redaction is wrong in principle, as well as slowing down the process of provision of material to the core participants. But of course the resolution of that issue must await the outcome of the High Court’s decision in the judicial review relating to Mr Johnson’s material.

The third matter concerns communications and material relating to agendas, briefings and minutes of calls between the First Ministers of Scotland and Wales and the first and deputy First Ministers of Northern Ireland and the United Kingdom Government.

It’s been made clear, we have made it clear to the core participants and to material providers, that communications with the devolved administrations is a vital part of Module 2 and that the records of key communications between government ministers and the devolved administrations must be provided. We have made repeated requests for an update on the delivery of such material, and on 25 May, just 12 days or so ago, the Cabinet Office wrote to the Inquiry to explain that, as a result of machinery of government change, these materials were now legally under the responsibility of the Department for Levelling Up, Housing and Communities, DLUHC, and we were asked to liaise further with DLUHC.

Naturally we have pointed out that that is an unacceptable position and we have asked the Cabinet Office in the strongest terms to address this issue.

Mr Chapman has addressed this issue in his written submissions for today, though those are, of course, in the bundle before you, and I’m sure you will be inviting him to further elaborate upon them.

They did indicate, I’m pleased to say, eventually, that the materials would be provided, and I’m pleased to confirm that they were today. But they now require to be reviewed, they need to be looked at without delay, and we obviously need to progress them for disclosure to the core participants.

I raise it for completeness because it’s a matter that the core participants have raised, or rather it’s a matter which needs to be raised with the core participants, because they’ve shown concern about the nature of the Cabinet Office’s approach to this material.

The fourth issue concerns the matter of Cabinet collective responsibility. My Lady, the Cabinet Office indicated in correspondence that it would seek to withhold from core participants, although not from the Inquiry, a certain amount of material, disclosure of which was said in its view to be likely to damage the public interest, national security. They argued that this material which is in their possession would, if it was disclosed, breach the principle of Cabinet collective responsibility.

The Cabinet Office provided a selection of materials, around 13 documents in all, consisting of Cabinet and Cabinet Committee minutes. They said that they were potentially representative of a larger number of documents in relation to which the government would wish to prevent onward disclosure and apply for an appropriate application under section 19 of the Inquiries Act for what is known as a restriction order.

My Lady, this morning we’ve been informed that the government may no longer wish to rely upon the principle of Cabinet collective responsibility for the purposes of seeking restriction orders and therefore withholding the disclosure of that material from the core participants.

You may wish to invite Mr Chapman to confirm the position today, and to provide you with more detail as to what the Cabinet Office’s principled basis for its position is.

It’s obvious that whilst the issue of these 13 documents may now be resolved, there is the potential for the principle to be applied at a later date to other material and we would welcome confirmation that the government will not take a position on Cabinet collective responsibility in relation to any material. If it does wish to do so, we would want them to make a formal application for restriction order by perhaps 20 June, in order that this issue doesn’t rumble on.

My Lady, given the indication today that such material may be received without a claim to Cabinet collective responsibility being made, I don’t think I need to address you in relation to the process that might be applied were a restriction order application to be made. Some of the core participants have advanced a number of submissions to the effect that they would wish to be heard in principle on the open issues reflective of the restriction order applications, and of course you would be, I’m sure, prepared to hear them. But may we defer to another day what procedure we put in place for the receipt of those submissions?

Fifthly, in relation to the Cabinet Office again, there is the well-publicised issue of Mr Johnson’s official diaries, his notebooks and potentially relevant WhatsApp messages, both from him and from one of his advisers.

My Lady, all that material dates from the period of government decision-making that is the subject of scrutiny by the Inquiry, and as you said on 28 April, a notice under section 21 of the Inquiries Act was sent to the Cabinet Office requiring those documents to be produced, because you considered them to be potentially relevant, and because they had been provided or understood would be provided only in redacted form so far, and so that there is no doubt, you’ve required them to be received in unredacted form so that you could determine the relevancy of their contents.

My Lady, the position maintained by the Cabinet Office is not likely, of course, to be limited to those particular materials. Almost inevitably, this issue will have application to the very wide range of documents, emails, WhatsApps and text messages that the Cabinet Office and other government departments will and may hold on behalf of persons who engaged in such communication. I have already addressed you in relation to the impact upon Google Spaces material.

So there is a principle of very considerable importance to be resolved.

My Lady, as you mentioned on Thursday last week, the Cabinet Office served its application for judicial review challenging your ruling of 22 May, which was a ruling, of course, that had the result that the section 21 notice still stood. Time is pressing. We have therefore requested, and the High Court has now ordered, that the application for judicial review be heard by way of a rolled-up hearing, and that’s a process, as you know, in which the court considers the application for permission and then, if it grants permission, it goes on to consider the full application.

That application, the rolled-up application, is likely to be heard on 30 June or very shortly thereafter.

Given that the issue is now on its way to the High Court, it’s probably not particularly profitable for me to say more about the judicial review itself. However, on 1 and 2 June the Cabinet Office supplied the Inquiry with copies of Mr Johnson’s potentially relevant WhatsApps and of his diary. Both sets of material were still redacted. They’ve also supplied us, again redacted, with copies of the notebooks, and copies of his 25 notebooks are said to have been transferred to us yesterday, although I don’t believe that they’ve reached the Relativity system.

Nevertheless, as has been well publicised, Mr Johnson has offered to provide the Inquiry with assistance directly. We’re grateful to him for his co-operation, and the Inquiry team has been liaising with his legal team to arrange for the inspection of the unredacted WhatsApps that he had provided to the Cabinet Office but which he has had returned to him. We expect to begin that inspection this week.

The inspection, my Lady, will allow your team to make its own assessment of the redactions applied by the Cabinet Office and to satisfy ourselves and ultimately you of their appropriateness or otherwise.

The Cabinet Office also holds the notebooks. We have proposed that they be returned to Mr Johnson by 12 June, after which we will make arrangements to inspect the unredacted copies of those notebooks for ourselves, and compare them to the redacted copies already provided by the Cabinet Office.

We are awaiting confirmation from the Cabinet Office about the possession and control of Mr Johnson’s diaries, and again we will seek to inspect a clean copy with the assistance of Mr Johnson if that proves to be possible.

My Lady, you know that Mr Johnson also holds an old phone which was turned off in 2021 for security reasons. Neither Mr Johnson nor the Inquiry have the technical expertise to ensure that the contents of the phone can be downloaded safely and properly, particularly bearing in mind the overarching need to ensure that no damage is done to national security. We have therefore agreed that this phone should be provided to the appropriate personnel in government for its contents to be downloaded. We have asked the Cabinet Office, in liaison with Mr Johnson and those government personnel, to obtain the phone without delay, to confirm in writing the process by which it will be examined, and to give confirmation that it, like the dairies and the notebooks and the WhatsApps, will be accessed fully. That is to say, that there will be no redactions made to the contents, other than in relation to national security, before we may view it.

My Lady, may I make one further observation on this topic. Some may have seen a report in the press to the effect that the Cabinet Office had written to Mr Johnson at the end of last week to say that payment of his legal costs was conditional, amongst a number of conditions, on him not giving the Inquiry any documents without its “pre-approval and redaction”.

The Inquiry Secretary, Mr Connah, wrote to the Cabinet Office on Sunday to seek confirmation of what we suspected to be the case, which is that the Cabinet Office was only seeking to ensure that national security protected material was not going to be disclosed by Mr Johnson. It is our understanding that the Cabinet Office was not seeking to prevent Mr Johnson from disclosing material which it, the Cabinet Office, believes, to use its phrase, is unambiguously irrelevant.

So, my Lady, the concluding point is we will shortly gain access to all the material on an unredacted basis.

Turning back to the submissions from the core participants, requests have been made by some of them for disclosure of correspondence with material providers, including the Cabinet Office, with whom the Inquiry has been engaging over this time concerning perceived non-compliance.

My Lady, where it’s necessary, the core participants will be informed of issues of non-compliance, but may we suggest that it’s not necessary or appropriate to disclose to the core participants the detail of the discussions or the correspondence with material providers.

It may be thought that the Inquiry has proved itself quite capable of dealing with issues of non-compliance.

Finally, in relation to the material from material providers, there are two other matters to which I would like to draw your attention, and they concern the DHSC, the Department of Health and Social Care, and the United Kingdom Health Security Authority(sic), the UKHSA.

My Lady, in relation to the DHSC, the initial Rule 9 request was issued on 20 September 2022. Whilst we have received and disclosed a first corporate statement from DHSC, and we’re grateful to it for that, there are two other further statements outstanding covering the period from August 2020 to February 2022 and a number of supplemental statements dealing with topics such as legislation, equalities, adult social care, international co-operation and devolution.

The deadlines for disclosure of those documents have been extended but are now overdue. They have been missed. May we invite, please, the DHSC to clarify the position in relation to those documents.

Secondly, in relation to the UKHSA, it received a Rule 9 request in October, deadlines for its draft statement have passed and, despite further extensions, only two parts of the statement have been provided. A significant majority, therefore, remains outstanding.

The Inquiry received on Friday a further application for more time. The Inquiry agreed to a modest further extension, but we do need to know what the UKHSA’s position is in relation to that, and whether or not we will receive that material forthwith.

My Lady, may I then turn to the issue of the request made in some of the written submissions from the core participants to the effect that the Inquiry disclose to core participants the Rule 9 requests that you have directed be made in Module 2. As I’ve said, they amount to many hundreds of Rule 9 requests.

My Lady, you will recall that in the confines of the preliminary hearings in Module 1, and in fact also Module 2, you had considered but ultimately went on to refuse this request. We’d respectfully suggest that there is no proper basis for revisiting your ruling.

Disclosure to the core participants of the Rule 9 requests themselves, as opposed to the relevant documents and materials which are generated by them, is neither required by the rules nor generally established by past practice.

In any event, of course, the core participants are starting to receive the Rule 9 statements and documents that are the fruit of this process.

We will, however, draw up a comprehensive list of every person or body that has been sent a Rule 9, and I believe that list is under preparation and will be provided in the next day or two.

Turning, then, my Lady, to the issue of the general state of disclosure of documents to the core participants. Seven Rule 9 statements and – corporate statements and two individual Rule 9 statements have been disclosed. We’ve received and we are considering or providing observations on a large number of Rule 9s which will be disclosed over the coming weeks. The remainder of the Rule 9 responses, those which we’ve either not received and disclosed or which we’re currently considering, are expected to be received in draft form over the next two months.

We have disclosed some 17,500 documents to the core participants, including those Rule 9 statements, and around about 273 questionnaires and supporting documents. We’ve disclosed thousands of documents from the Department of Health and Social Security, narratives from the Cabinet Office which set out a chronology of meetings and of communications, minutes detailing the events of COBR meetings, Cabinet meetings and meetings of the ministerial implementation groups. We have disclosed corporate statements from a number of government bodies and, over the next few days, will be providing corporate witness statements and exhibits from the Treasury, the Equality Hub in the Cabinet Office, witness statements from Cabinet Office witnesses, and witness statements on behalf of a number of regional mayors.

My Lady, there are tens of thousands of documents in the process. Around about 9,000 are already with material providers awaiting a final review and confirmation that they can be disclosed to the core participants at our direction. Around about 24,000 are in the review process, which you’ll recall from previous hearings is the process whereby there is a first and then a second-level review by the Inquiry team on relevance.

We’ve received material from around about 70 organisations, and that material in the main will be disclosed, as I’ve said, by the end of July.

The pace at which the Inquiry paralegals and lawyers have conducted that first and second level review has gone up dramatically since we last met, due to the considerable further resources made available, and their massive hard work.

Save for the materials which it knows to be outstanding, and anything which results from further requests for disclosure which we may issue, the Inquiry expects that it has now received the vast majority of the disclosure relevant to Module 2. It will, as I say, be swiftly reviewed and I’m very grateful to the material providers who have provided it all.

We are confident the vast majority will be disclosed by the end of July, that’s to say the Rule 9 statements, and that the vast majority of the documents which accompany them, around about 40 to 50% of what we’ve received, because of course not everything is relevant, will be received by the core participants by the end of August.

By then, around 35,000 documents are likely to have been disclosed, and, my Lady, that is a remarkable feat, given that the first tranche was only made, by way of disclosure to core participants, in December.

My Lady, on the subject of disclosure, a number of requests have been made, specific requests have been made by the core participants. One core participant has asked about cross-module disclosure. We have that very much in mind, and we will be making arrangements for materials which are disclosed in Module 2 to be made available in Modules 2A to 2C as appropriate, and of course documents disclosed in Module 1 and 2 – Module 1 commencing next week – will be available on Relativity for use in subsequent modules.

The Welsh Government have raised a query in relation to the Inquiry’s disclosure of meetings and emails and material relating to the Westminster, the United Kingdom Government’s communications with the Welsh Government over the decision-making from February and March 2020.

I can say that the disclosure that we’ve already made includes narratives prepared by the Cabinet Office in respect of key meetings with the Welsh Government, and so the Welsh Government should already have access to that material. We’re also seeking further materials from the Cabinet Office and DLUHC, the Department for Levelling Up, Housing and Communities, concerning Whitehall’s engagement with the devolved administrations. When received, they’ll also be disclosed.

Another core participant had asked for a detailed chronology of events, with references to underlying disclosure or possibly chronological accounts of key evidence themes. We have asked the Cabinet Office, the UKHSA and the DHSC for chronologies of key events and meetings, and they will all be disclosed in due course.

Finally, one core participant has asked that the witness statements be disclosed on a rolling basis. They are being disclosed on a rolling basis, other than where we consider that the core participants would be better assisted by making sure that the statement is disclosed alongside its accompanying exhibits.

My Lady, may I then address you briefly on the issue of timing, because I want to say something about the very considerable progress that the Inquiry’s already made, and about the timing of the public hearing in the autumn.

We’ve proceeded at a remarkable pace. There is simply no justification for any complaint that the Inquiry has been slow or dilatory. No Inquiry with so wide a scope has ever proceeded with such speed. But the Inquiry process is simply not designed to assemble every single document and person relevant to the preparation, for the response to, or the impact of the Covid pandemic. That would be an impossible task, and no sensible Inquiry could ever contemplate it.

What we’ve done is to seek the witnesses and documents that you have considered are most relevant to the issues that you’ve decided that you want to explore. This is especially so in Module 2, because it’s concerned with the high level political and administrative decision-making. It is not a module enquiring into every aspect of every decision on Covid. It’s an inquiry into only such parts of the decision-making process that appear to you to really matter.

Even then, my Lady, we need to put the core participants on guard that it is impossible to call every witness who can give evidence of every issue covered in every paragraph of the list of issues for Module 2 that you have directed be produced. We have neither the time nor the resources for this and I daresay the core participants and the general public would not wish it to be so. So choices will have to be made as to which witnesses will be called at the public hearing.

But, my Lady, there can be no doubt that by the time of that hearing, sufficient material will have been secured and disclosed and given to the core participants to enable you to be satisfied you can conduct an absolutely full and fair Inquiry.

Documents will necessarily continue to be received right up to the date of the hearing, but the core participants undoubtedly have the determination and drive and their legal teams the skill and experience to make it work.

Lastly, I must emphasise that although the law does not give the core participants the right or the ability to decide themselves what witnesses should be called to be examined, you have asked the Inquiry to ask all the core participants to tell us what issues should be explored, which witnesses should be called, what should be put to them, and what documents should be aired. That is the sole purpose of the Inquiry having sent out the provisional list of witnesses – or, in due course, the provisional list of witnesses, but already the provisional list of issues, the proposed evidence proposals in due course, and also the proposed questions.

All the core participants have been given the chance to help decide what evidence should be publicly ventilated and tested.

Few countries, my Lady, have established formal legal inquiries investigating the many aspects of the pandemic, but of those that have, the United Kingdom Covid-19 Inquiry is the first to have reached public hearings, because of course it commences Module 1 next week.

A number of countries have held independent commissions led by epidemiologists and public health economic experts, and many of those commissions have indeed concluded. But, my Lady, they were not legal processes. They did not have the force of law behind them. They did not have powers of production. They couldn’t compel witnesses to attend. They couldn’t compel the production of material, as you have done already in this Inquiry. And, therefore, they could not provide the core participants or the public with anything like a meaningful participation. They did not, of course, address these issues with anything like the same degree of scope and width.

My Lady, the next issue on the agenda concerns expert witnesses.

We have set out in our note the position in relation to the instruction of a number of experts, Professor Ailsa Henderson, Professor Thomas Hale, Alex Thomas from the Institute for Government, and Gavin Freeguard, former programme director and head of data and transparency at the Institute for Government.

The core participants are aware of the areas on which all those experts are due to opine. The draft report from Professor Hale has been circulated. We were provided with a voluminous number of observations in reply, and we’ve obviously been through those observations and comments, and had to decide which of them required a response from Professor Hale. He is in the process of considering those comments and our observations on his draft report, and I believe his final report is due by the end of June.

A draft report from Professor Henderson has been circulated, we’re considering the core participants’ responses, and I believe that a further draft will be provided in due course, once Professor Henderson has had a chance to consider those comments.

The reports from Alex Thomas and Gavin Freeguard will be shared with the core participants for their observations in the next two weeks.

My Lady, one core participant has asked that where experts have referred to publications, the Inquiry be provided with the articles, and that those are in turn disclosed to the core participants. We have asked the experts to provide the documents to which they refer, quite naturally, or to include full references or hyperlinks, and all that material will be made available.

Importantly, at the previous preliminary hearing, you directed that further experts be instructed to deal with the issue of pre-existing structural racism, but also other areas of pre-existing structural inequality, intersectionality and discrimination. The Inquiry team sought the views of core participants on who might be best placed to assist it, to assist the Inquiry, and we’ve considered the recommendations which they’ve kindly made. We’re in the process of instructing, finalising the instructions to those experts, and they include Professors James Nazroo, Tom Shakespeare, Nick Watson and Clare Wenham, the leading experts on discrimination relating to race and ethnicity, ageing, disability and sex. So, my Lady, that task is well in hand.

The Inquiry has also identified and is in the process of instructing additional experts to consider the position of children and people from the LGBTQ+ community with regard to discrimination and inequalities. The CPs will be updated very shortly with a copy of the confirmation that instructions have been sent to those experts.

Lastly, we’ve decided that the report prepared by Professor Clare Bambra and Sir Michael Marmot in Module 1 should be disclosed to the core participants in Module 2, and it was so disclosed on 31 May. But together, that report together with all the additional material that you have ordered be obtained from experts, will ensure that inequalities are placed at the fore of the Inquiry, and therefore will run through the entirety of Module 2, as with the later modules.

On the subject of the list of witnesses, to better ensure the timetabling of witnesses come August and September, the Inquiry will begin this week writing to certain core witnesses, through their legal representatives, putting them on notice formally of the hearing dates and to seek any dates to avoid.

My Lady, may I emphasise that those provisional witnesses of course are, by necessity, provisional only. We are awaiting further statements. Not all of them, moreover, who are given notice will necessarily be called, and some additional witnesses will have to be written to later, once, of course, we’ve received observations from the core participants as to whom we should call.

The Inquiry team thereafter proposes to send out, likely at the end of June, a provisional list of those witnesses who may be called to give oral evidence at the public hearing, and the core participants will be invited to make observations.

My Lady, because it’s quite possible that we will receive draft Rule 9 statements from further witnesses after that date, the date upon which the core participants will have given us their views as to whom we should call, I can reassure them that we will remain open to considering later requests for further witnesses after that additional material has been received.

My Lady, the next point on the agenda, the next issue to be addressed concerns the call from Covid-19 Bereaved Families for Justice United Kingdom for the Inquiry to receive oral evidence from its members in the course of the Module 2 public hearing.

May I say that we do intend to call a range of witnesses from across the bereaved groups and other minority, vulnerable and marginalised groups who are represented in this Inquiry. We’re also likely to formally introduce into evidence a number of the responses to the impact questionnaires that we had sent out.

But, my Lady, may I explain briefly why, in our submission, it is simply not possible to call everyone that the Covid-19 Bereaved Families for Justice Group UK and other groups would wish us to call.

You have already ruled in principle on whether evidence should be called from individual bereaved families, and in your ruling of October following the first preliminary hearing you said, in line with the terms of reference which bind you, that evidence of circumstances of death should only be admitted in this and later modules if it is relevant to possible systemic failings.

My Lady, the evidence of single deaths, however awful, compelling and terrible, simply cannot demonstrate of itself whether there were system failings, as opposed to there having been a failure to prevent that particular death. And you made clear you needed no persuading that bereaved family members may well have relevant evidence to give on particular areas of systemic failings, for example the widespread use of Do Not Resuscitate notices, but if so that evidence can be called in the later modules where those issues are under consideration.

Evidence of how loved ones died, coupled with the views, hugely moving views, of the makers of the statements as to why they died and why they believe that the deaths were contributed to [by] failings on the part of the systems, does not go to Module 2. Module 2 is concerned with the high level response of the government in terms of its political and administrative decision-making. What consequences in terms of the individual circumstances of harm and injury, loss and death which may have resulted cannot assist you in examining the merits of those decisions at the point that they were taken. But, as I say, my Lady, we are nevertheless going to call a range of evidence where we possibly can in Module 2 in order to meet that perfectly understandable request.

My Lady, finally, in relation to some of the practicalities relating to the hearing in October, the Module 2 public hearing will begin, as will the Module 1 public hearing next week, with a film showing the recorded views of some of those who have suffered so much. The public hearing in Module 2 is scheduled to last eight weeks, from 3 October to 7 December, with, at present, two one-week breaks in the middle.

My Lord, it has been suggested that there be a further preliminary hearing in late July or in September, and that is under consideration.

My Lady, although not directly relevant to Module 2, may I also just say something very briefly about Every Story Matters, because it’s found reflection in many of the written submissions filed by the core participants.

My Lady, following a direction that you gave at an earlier preliminary hearing, the Inquiry published in April, on 27 April, a detailed document setting out in a single place all the progress that had been made with the listening exercise, Every Story Matters, together with an open letter from Mr Connah, Secretary to the Inquiry.

It has been made plain that a new and improved online Every Story Matters web form would be launched, and it was launched on 23 May, and it incorporates a number of changes following feedback from organisations and individuals, including from the bereaved groups, who took part in user testing.

There is a new paper version of the web form, a large print version and an easy read version, and all of that will be made available for the launch on 13 June.

There is also a British Sign Language video explainer, explaining how to take part. That will be available, and we’re exploring options for receiving Every Story Matters responses in British Sign Language also.

My Lady, a public information campaign to encourage participation in Every Story Matters will also begin next week, including radio advertising, print advertising, print and digital billboards, adverts and the like. So, my Lady, that launch is imminent.

The Covid-19 Bereaved Families for Justice United Kingdom and Covid-19 Northern Ireland groups have requested that they be provided with commercial tender documents relating to the prospective hiring of the communications company that will necessarily be assisting the Inquiry with Every Story Matters.

My Lady, it’s simply not standard practice for any public body to share documents whilst a procurement process is under way, to protect obviously the commercial process. Once contracts are awarded, information about the contracts will be published on Contracts Finder within 30 days of the contract being signed.

The communications contract is likely to be signed in late June, but I can say that 23red, with which the Inquiry worked at one part of the first phase of developing Every Story Matters, is no longer working with the Inquiry and will not be doing so.

My Lady, one group of core participants have raised access to Every Story Matters by disabled people as an issue. The evidence, my Lady, shows that most people want to share their experiences online in their own time and in their own way, and I can assure that group of core participants that the online form has been designed for and tested with disabled people in mind, and it can work with a variety of assistive technologies.

My Lady, turning to the submissions made by the Save the Children United Kingdom group and their affiliated bodies. The Inquiry has decided that the open web form is not an appropriate avenue through which to collect the experiences of those currently under the age of 18, due to obvious safeguarding risks, but we are developing plans to ensure we understand the experience of such people, and we will bring those shortly to your attention for your consideration.

I should also add that the Inquiry has created an ethical advisory group to provide an independent ethical review of the research design and the approach to Every Story Matters and, as you know, that group is chaired by Professor David Archard of Queen’s University Belfast.

At least three panels of the commemorative tapestry will be ready by the commencement of the Module 1 public hearing next week and digital access will be provided later in the summer.

My Lady, I mentioned earlier the impact film which is to be shown at the start of the Module 1 hearing. A different film will of course be played at the start of Module 2.

My Lady, the filming sessions are taking place across the United Kingdom and further filming dates will be announced in due course for Module 2. We would ask interested core participants to submit volunteer interviewees and they can do that by emailing the Inquiry’s engagement email address, which will be provided with the filming dates.

My Lady, that concludes my opening submissions in relation to the majority of the matters raised in the written submissions and in relation to the practicalities of this module.

May I lastly just seek permission from you, please, to publish the core participants’ submissions and the CTI note.

My Lady, that may be a suitable place for a break for the stenographer .

Lady Hallett: Thank you very much. You have the permission to publish the submissions and the CTI note. And I shall return at 11.55. Thank you.

(11.38 am)

(A short break)

(11.55 am)

Lady Hallett: Right. Ms Maragh.

Submissions on Behalf of Covid-19 Bereaved Families for Justice UK by Ms Maragh

Ms Maragh: I’m still able to say good morning, my Lady.

I represent the Covid-19 Bereaved Families for Justice, along with Pete Weatherby King’s Counsel and Anna Morris King’s Counsel, instructed by Elkan Abrahamson and Nicola Brook of Broudie Jackson Canter.

My Lady, there are a number of bereaved family members who are present in the Inquiry room, and who are also following the proceedings live.

The Inquiry has received joint statements and some written submissions from ourselves and Northern Ireland Covid-19 Bereaved Families for Justice, which, my Lady, we know that you and your team have read and accorded careful consideration, and for that we’re grateful.

We’re also grateful for your opening update and also Mr Keith’s opening remarks.

Additionally, we are grateful for the opportunity to address you orally. Mindful of the time constraints, Ms Campbell King’s Counsel, who leads the Northern Ireland team, and I have divided our oral presentation to address the matters that our clients raise.

My Lady, given the importance of the issues and the strength of feeling in our respective client groups, there will inevitably be some overlap. Ms Campbell King’s Counsel will lead on devolved issues as well as matters of particular concern to the bereaved families of Northern Ireland.

I will address you on the following topics, in general terms, my Lady: Rule 9 requests, with particular focus on the Cabinet Office issue, disclosure, list of issues, provisional list of witnesses, expert witnesses, Every Story Matters, commemorations and, briefly, my Lady, the Inquiry venue.

The Cabinet Office issue and the redaction of documents.

The Covid-19 Bereaved Families for Justice support your robust approach to evidence gathering, my Lady, and the use of section 21 notice in response to the Cabinet Office’s non-compliance with Rule 9 requests, and the Inquiry’s disclosure and redaction protocols.

They welcomed your ruling of 22 May, rightly, my Lady, rejecting the Cabinet Office’s submissions to discharge the section 21 notice. We agree that the determination of relevance falls to be determined by you.

The families are deeply disappointed that the Cabinet Office is persisting with its legal challenge to your ruling, which the families see as a further step to interfere with the Inquiry’s independence and to control the material it receives and what it can and cannot see.

The families also question the purpose for which the redaction process is being used and the Cabinet Office’s candour in its responses to the Inquiry’s request and notice.

We make two brief observations, my Lady. Referrals to the police forces. It is of note that some of the documents that are the subject of the section 21 notice which were produced to the Inquiry in redacted form are the subject of the Cabinet Office referrals to two police forces, not made at the time of the redactions, but only after the issue of the section 21 notice requiring their production to the Inquiry, and the attempt on May 15 to maintain their non-disclosure.

My Lady, whilst we have not had sight of these documents, we make two further observations in relation to that issue.

Firstly, the fact that the Cabinet Office have apparently referred to them – to refer some of them to the police indicates that the Cabinet Office itself considers that they may evidence criminal offences.

Secondly, the fact that the Cabinet Office did so only after the section 21 notice was issued also raises serious questions about the redaction process and for which it may have been used.

Turning briefly, my Lady, to the matter of Mr Johnson’s WhatsApp messages and notebook, we note Mr Keith King’s Counsel’s update on the Inquiry’s progress with material relating to Mr Johnson, which have further raised questions of transparency on the part of the Cabinet Office response to your Rule 9 request. In relation to the old phone, the families remain concerned that all relevant material is disclosed to the Inquiry.

My Lady, the Cabinet Office is the heart of government and undoubtedly understands that public bodies are obliged in the discharge of their duties to act with candour, an undoubted pillar of good governance.

Covid-19 Bereaved Families for Justice considers that the Cabinet Office’s response to the Inquiry’s Rule 9 requests, the redaction and withholding of potentially relevant material from your investigation demonstrates a lack of candour and undermines the sincerity of its statements that it will assist this Inquiry in the discharge of its terms of reference.

Further, the conduct of the Cabinet Office risks delaying your investigation, the progress of this Inquiry, public confidence in the process, and your ability, my Lady, to report and make recommendations in a timely manner.

Quite frankly, it beggars belief that just a week short of the commencement of oral evidence in this Inquiry, your focus, that of your team, and the focus of the bereaved families are being diverted by the Cabinet Office’s legal challenge.

My Lady, the conduct of the Cabinet Office rings of obfuscation and, in our view, there could hardly be more compelling evidence for the need for a statutory duty of candour and associated legal tools to enforce it, as called for by a significant number of chairs of previous Inquiries, reviews and a wide number of bereaved family groups, including the Hillsborough families and the Grenfell families.

In the absence of such legal reform, my Lady, we urge the Inquiry to adopt a fully transparent approach to Rule 9 requests in dealing with the challenges to its process.

Additionally, my Lady, position statements requiring proactive identification of issues and material which may be contrary to their interests and requiring senior officials to sign off on disclosure is a potent way of ensuring candour in the current provisions.

In this regard, my Lady, we renew and rely on our previous submissions inviting the Inquiry to request position statements from state and organisational institutions.

Turning, my Lady, to the matter of Cabinet collective responsibility, we note Mr Keith King’s Counsel’s update that the government may not wish to rely on Cabinet collective responsibility at this stage. That is welcomed news, and in the event that the issue is resurrected in relation to other documents, we would wish to be promptly updated and, my Lady, you have our submissions in relation to process which we say should be maintained.

Turning now to the issue of overdue corporate statements and disclosure. We note the written submissions of the Department of Health and Security(sic) and the UK Health Security Agency, and make the following brief observations.

The decisions and activities of both departments were central to the UK’s response to the pandemic, and impacted significantly on the outcomes of those who died, and in effect, my Lady, the bereaved families.

Whilst we do not in any way underestimate the pressures associated with the general preparation for this Inquiry, which is being undertaken alongside the general work of the departments, the response of the Department of Health and Social Care carries a ring of institutional defensiveness, my Lady, blaming the Inquiry from “the request for detailed information for the two-year period of its investigation”.

Government departments, including the Department of Health and Social Care and UKHSA, would have known as far back as May 2021, when the public inquiry into the government’s handling of the pandemic was announced, that the actions of government ministers, officials and civil servants would be scrutinised.

Covid-19 Bereaved Families for Justice would have expected government departments, including the Department of Health and Social Care, to anticipate the need for additional resourcing to meet the rigours of such an investigation.

We note that it is estimated that corporate statements requested by the Inquiry in September of 2022, so over eight months ago, will be submitted to the Inquiry in June along with other statements, including that of Matt Hancock, for Module 2.

We again note Mr Keith King’s Counsel’s update on disclosure, but remain concerned that the delay in compliance with disclosure requests and resourcing challenges raised by government departments raise real concerns as to the potential impact on the Inquiry’s Module 2 timetable.

My Lady, we ask that CPs be updated as to the progress.

Turning now to the discrete matter of cross disclosure raised by core participants. We support FEMHO’s submission for CPs to have access to disclosure across modules, and no doubt Mr Dayle will address you further on this matter.

On the issue of expert witnesses, we note CTI’s update on expert witnesses and the progress with draft report. The families welcome the confirmation of the Inquiry’s instructions to experts on structural racism and inequality. We also welcomed the Inquiry’s engagement with CPs on the identification of appropriate experts to assist with this work, to which the bereaved families with expertise in race and health equality contributed. We ask that the Inquiry invites similar input from the bereaved in relation to the drafting of letters of instructions to the instructed experts on structural racism and inequality.

Turning, my Lady, to the provisional list of issues. Once again, my Lady, we welcomed the Inquiry’s engagement with CPs on the preparation of the list of issues and await the Inquiry’s response to the matters submitted.

Covid-19 Bereaved Families for Justice urges the Inquiry to list as specific issues for investigation in Module 2 structural racism and inequality, austerity, the treatment of the bereaved, and we support the submissions raised by Long Covid group for the inclusion of long Covid as an issue for investigation in Module 2.

In relation to structural racism and inequality, my Lady, we of course welcome the Inquiry’s commitment to investigating the role of structural racism and inequality during Module 2. As you would have noted in our written submissions and previous oral submissions to you, structural racism and the nature of racial inequality across the United Kingdom and its impact on the disproportionate numbers of black and brown people who died during the pandemic warrant distinct analysis. We therefore invite the Inquiry to expressly list the investigation of the impact of structural racism on the outcomes for black and brown people as a specific issue during the investigation of Module 2.

In relation to austerity, we welcome the Inquiry’s update that the issue of austerity is being considered for specific investigation in Module 2.

Thirdly, the approach of the deceased and bereaved people. As the Inquiry team are aware, my Lady, Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice have great concern about the treatment of bereaved families and their loved ones, particularly in connection with burial arrangements and the interference with funeral rituals. We seek confirmation, my Lady, that core political and administrative decision-making about these matters will receive appropriate scrutiny in Module 2.

In relation to long Covid, we welcome CTI’s update on long Covid and, as I have indicated, my Lady, we support Long Covid groups’ submissions that Module 2 should investigate the government’s knowledge of and the decisions taken in relation to long Covid, and we specifically support their submissions for the six framework questions to be put to witnesses during Module 2.

Turning, my Lady, to the provisional witness list.

The voice of the bereaved in the Inquiry. Covid-19 Bereaved Families for Justice, having campaigned long and hard for the public inquiry, are ever alive, my Lady, to the breadth of your investigation which necessitates the calling of a proportionate number of witnesses. We are mindful of Mr Keith’s update, and we will continue to work with the Inquiry team, as we have done in Module 1 and Module 2, to identify suitable bereaved family members to give evidence in Module 2.

Turning now, my Lady, to Every Story Matters.

Our submissions are set out at paragraphs 34 and 36 of our written submissions, and we highlight the following matters: firstly, my Lady, we welcome the Inquiry’s update in relation to 23red and seek clarification of the position in relation to the engagement of IPSO(sic) and M&C Saatchi. In relation to the process of Every Story Matters, we remain concerned that the project appears to focus on the collation of themed reports which will be submitted to you as evidence rather than the accounts of the bereaved.

Additionally, the families remain unaware of the expertise and training of those who will be involved in the evidence gathering and those who will be preparing the reports and how the integrity of the online material will be ensured.

My Lady, the reality is this: many of the bereaved families have simply not engaged with Every Story Matters, for the reasons I have set out above.

Turning to commemorations, it remains a real disappointment to the families that the Inquiry has not seen it fit to devise a way of memorialising those who have died, either through a proportionate amount of material heard in the hearings, or by way of online methods, or both.

My Lady, as we have said in previous written submissions and oral submissions to you and representations to your team, the families remain willing to engage with the Inquiry to find a way forward on this issue.

Final topic, my Lady, relates to the venue.

We are grateful, my Lady, for your opening remarks touching on the venue, and we are equally grateful that those remarks were mindful of the concerns raised by the families. We appreciate that the identification of a suitable venue and the fitting of suitable resources and equipment is a balancing exercise. We appreciate that time and resources are not finite, and we trust, my Lady, that you will, in your presiding over the Inquiry, take into account the matters raised by the families.

Unless there are other matters or any other matter that you would wish for me to address you further on, those are my submissions.

Lady Hallett: If I could just say this, really, rather than ask you to address me further, Ms Maragh: as far as the concerns of the bereaved are themselves concerned, I do understand and I do understand how when people have been demanding an Inquiry and they have to wait for some time, how they can be upset by some of the decisions. But, from my point of view, I have tried my very best, given the constraints upon me, from the very outset of this Inquiry to make sure that the bereaved and those who suffered in other ways have been at the heart of this Inquiry. I have ensured that the team are conscious that the bereaved and others who have suffered will be at the heart of the Inquiry. We are calling as many witnesses as we feel we can in each module from bereaved groups and others, but it has to be consistent with the time constraints upon us and the other matters of relevance.

So I have all these restrictions, but I am doing my best. We have commissioned films from those who have suffered, and in watching the final draft of one of those films just yesterday, I learned of a practice in relation to the burial of a lost loved one that caused me huge concern, and I will ensure that we investigate that matter, which just gives one example of why, if only those whom you represent will contribute to Every Story Matters, I can learn more about issues that I have to explore. So I urge those of you, those whom you represent, to consider carefully before they say we’re not doing enough. We are trying, and, with the assistance of groups like yours, then we can do as much as possible. We are holding community events around the country and I hope to attend some of them in person. I don’t want just want to say, “I’ll just read a report”. I know how important it is to hear from people, and as much as time will allow I will go around the country, around the United Kingdom.

We are going to ensure that what people say online is properly considered and fed into the enquiries. So I’m trying in as many ways as we can think reasonably possible to ensure that people who have suffered are at the heart of this Inquiry, and that’s all I can say at this stage.

I appreciate you probably don’t wish to respond, but I thought I needed to get that off my chest. I’m sorry.

Ms Maragh: My Lady, I am grateful. If I may just raise one brief or make one relation in response, and it is this: for Module 1, despite the engagement with the families and representations made, for you to hear from a proportionate number of the families, you’re hearing from just one bereaved family across the groups. Now, that, my Lady, does not sit well with the families. So we are encouraged by your response, and we look forward to continued engagement with your team for Module 2 so that you and your team hear live from those who lost their loved ones in this pandemic.

Thank you.

Lady Hallett: Thank you, Ms Maragh. I totally support the point you make about engagement. That is the only way the core participants, like Bereaved Families for Justice UK, can participate properly, and I just urge people to think carefully before they say they’re going to withdraw their engagement, because it will just make my task even harder.

So thank you very much.

Ms Campbell King’s Counsel.

Submissions on Behalf of Northern Ireland Covid-19 Bereaved Families for Justice by Ms Campbell

Ms Campbell: Thank you, my Lady.

My Lady, I’m grateful, once again, for the opportunity to address you on behalf of the Northern Ireland Covid-19 Bereaved Families for Justice. Our clients are not able to be here in person, although some of them look forward to attending in person next week, but I know many are following online or will catch up online, and they will have listened with interest to the observations that they will have just heard.

You know, my Lady, the very real engagement that our group leads, and indeed all of our bereaved families wish to have, and the very real support that we have shown your Inquiry as it has progressed. And you also know, and have articulated, the very real need for all the bereaved families to ensure that this Inquiry is meaningful, is thorough and is as effective as possible in scrutinising the evidence.

What that means for us in real terms is allaying rumour and suspicion, is identifying good practice, is exposing bad practice, and is ensuring insofar as humanly possible that lessons are learned so that during any future pandemic, for there is sure to be one, fewer suffer the great loss that so many of those whom we represent suffered in the last one, and we know you share those objectives, as indeed do your team.

My Lady, we’re conscious that this preliminary hearing falls at a time when you and your team are undoubtedly overwhelmed with work, firstly in preparation for Module 1 commencing next week, as well as suffering the very real and significant diversion of resources as a result of the satellite litigation launched in the Administrative Court by the Cabinet Office.

It is testament to your commitment to overcome each obstacle that we are here today, keeping marching forward, notwithstanding those recent threats that challenge, as is put in the CTI note, or threaten to disrupt the Inquiry’s progress, and we’re grateful that you’ve given us this time today, notwithstanding those very real and competing demands.

Perhaps it’s appropriate that I use some time at the start then to commend the Inquiry’s work, and may I do so in two particular areas, although they have in common the reality that the Northern Ireland bereaved families learned about them and the detail of them online and through publications rather than through any actual participation in the Inquiry’s process – and for the moment that is not, if I may say so, a criticism.

Firstly, like the UK team, the Northern Ireland Covid-19 Bereaved Families for Justice unreservedly commend your ruling on the Cabinet Office attempt to persuade you to accept the argument that the provision of pre-filtered, pre-determined, pre-redacted documents satisfies its duties of disclosure and are consistent with its duty of candour.

The argument that those whose actions or inactions are to be scrutinised in this Inquiry should also be permitted to pre-determine what may be relevant is a bold one, and it is one that we submit was and ought rightly to be swiftly and roundly rejected.

That must be particularly so in an inquiry of this magnitude and of this public importance, before the most experienced of judges, and with, amongst other functions, a duty to interrogate the detail of government response, so as at least in part to restore public confidence in governance during a pandemic.

It is, we contend, unfortunate, some of those whom I represent might say offensive, that the bereaved families who look to this Inquiry to provide answers see the Cabinet Office not working constructively with the Inquiry in the application of your ruling and instead persisting to rally against it. The Cabinet Office’s argument that you were asking too much of them really does ring hollow to those whose loved ones paid the ultimate price.

And it’s particularly unfortunate, as has just been observed by my learned friend Ms Maragh, that notwithstanding that this issue has been a live one for as many as six months and, in real terms, for a great deal longer than that, because the requests you have made were obviously always going to be made, it is unfortunate that the Cabinet Office has allowed or enabled a situation wherein this dispute has overshadowed the work towards the Inquiry opening next week and is in fact now to be resolved by the Administrative Court right in the middle of those Module 1 hearings.

The damage that has already been done to public confidence is written large across media outlets, but the tolerable that it is taking on the Northern Irish bereaved, largely hidden behind closed doors and expressed over kitchen tables from which loved ones are absent, is really immeasurable.

My Lady, your team has the full support of the Northern Irish bereaved in resisting the application for judicial review. The arguments raised against your ruling are, we contend, unsustainable in law and, I’m afraid, ill considered in their practical effect and should be rejected.

The second issue on which we commend you, my Lady, is another to which we have had our attention drawn through the media, in this case through Twitter.

We have, as my Lady knows, for many, many months sought to persuade you to disclose the detail of Rule 9 requests that have been issued to individuals and organisations, and it was something of a revelation last week to discover the detail of many of the questions apparently posed to the former Prime Minister, Mr Johnson, had been publicised and circulated on Twitter.

How it is that media obtained copies of the questions that core participants were denied is perhaps a question for another day, but it is right that we applaud those questions, if indeed they were posed. Whilst the medium in which they were revealed was perhaps of little reassurance, it was plain from reading those Twitter feeds that the questions posed by you and your team to the former Prime Minister are clear, unambiguous and reflect a great many of the concerns of the bereaved families. It remains to be seen, of course, how forthright the answers are when they come.

But, my Lady, those two issues really serve to highlight the primary and interrelated concerns of the Northern Ireland bereaved families on the approach to the Inquiry and to Module 2 in particular.

Firstly, we are concerned to know that the Inquiry has access to all potentially relevant disclosure related to its very broad terms of reference, and, secondly, the question is to what extent will the Inquiry permit the Northern Irish bereaved to actively and effectively participate in this process.

In relation to that, we have a number of observations, I think four or five in number.

Firstly, it is deeply disappointing that the Inquiry continues to be faced with inadequate or delayed responses to requests for statements and other material. We have previously in written and oral submissions raised concerns that the approach of the Inquiry to witness evidence in this module, and indeed in Module 1, is top heavy, and we understand why that is, and why the primary requests for the accounts of government ministers or departmental corporate statements have been made. But of course sometimes when you ask for corporate statements what you get in response is the corporate line.

We note that this concern finds additional force in the written submissions before you this morning, my Lady, particularly from the TUC and indeed from others. They are concerns that we still hold firm, and the continuing delays around receipt of statements and accounts of individuals in government departments really serves only to exacerbate them.

Secondly, the manner in which the absence or inadequacy of statements is being addressed by the Inquiry, we submit, denies the families and indeed the public the knowledge as to who it is that is doing the obfuscation, to what extent that is happening, and why it might be.

My Lady, that is not to deny the very considerable work that’s clearly going on within your team to address it and to manage it and to marshall the process. But if a corporate statement or a minister’s statement is only disclosed to us in its final format, having had to be cajoled or encouraged or even extracted under threat by the Inquiry, to provide an adequate response over many months, we must be permitted insight and a greater degree of insight into that process, because that process in and of itself may well go to the credibility of the evidence that the Inquiry is to publicly hear. It is clearly a matter of public interest, and it almost certainly goes to the sincerity of any professed willingness to learn future lessons.

So while we’re grateful for what we have been told, both in writing and indeed today, and we don’t underestimate the amount of work that is going on behind the scenes, we submit that the curtain must be raised on this activity in its entirety, we must know the cast who are engaging in this behaviour, and moreover we observe that to give any cover to the behaviour, to allow it to happen in circumstances where we don’t know who, what or when, risks encouraging it.

So we ask: who are these actors who are delaying and prevaricating and providing inadequate responses? And allow us, please, to see that process in real time.

Thirdly, my Lady, applying even the greatest optimism, of course all of us in this room must do that, experience dictates that the Inquiry’s aim of largely completing disclosure by the end of July is likely, in fact highly likely, not to be met.

Putting to one side the issue of WhatsApp and Google Spaces and the magnitude of data and information that will come, we hope, and come soon, from that source, we only have to look at the response from the Department of Health and Social Care to appreciate where the delays will fall.

I preface my submissions, my Lady, with the observation that undoubtedly a significant burden has been placed on that particular department and that the demands of the Inquiry are undoubtedly resource-intensive.

But, my Lady, corporate statements that were requested in September 2022, nine months later, are yet to be delivered. Nine months. We are told in the submissions that the first statement might be with the Inquiry this week, together with exhibits totalling 890. We are told we can expect its sister statement hopefully towards the end of the month, together with another 400 or so exhibits. A total of almost 1,300 exhibits under cover of two statements that have taken over nine months to put together will be given to the Inquiry in the coming weeks at a time when Module 1 has already commenced, when attention is diverted to a judicial review application, and we are hurtling towards the start date of Module 2. It affords precious little time for this Inquiry to consider them for onward disclosure to core participants, undoubtedly meaning, with the best will in the world and working round the clock within your team, that we will have them for a few comparatively short weeks before the hearings commence.

My Lady, we mean no criticism of you or your team when we observe that that is simply, from our perspective, not good enough. The Northern Ireland Covid-19 Bereaved Families for Justice, as we are doing in Module 1, will find ourselves without enough hours in the day to properly prepare for the full hearing if we don’t get this material sooner than the timeframe which these departments are allocating to themselves.

Fourthly, my Lady, I note today – and perhaps I can take this rather shortly – I was going to observe on the difficulty in identifying really where Northern Ireland fits within this module. We have previously made suggestions on Rule 9 recipients and we have not had any clarity on the extent to which those have been accepted or actioned, but I note that there is to be within the coming days a full list of Rule 9 recipients, and we look forward to receipt of that, and we will work together with your team in relation to it.

We have had precious little Northern Irish-related disclosure. The Cabinet Office had not yet managed to identify disclosure relevant to Whitehall’s communication with the devolved administration in the early days of the pandemic and indeed beyond. That came as some surprise but we hope it has been resolved.

If I may, we would ask that, in addition to those requests being made of Whitehall, particularly given the very recent history in relation to disclosure, we would ask that the mirrored requests are made of Cardiff, Edinburgh and Belfast, so that we can scrutinise the disclosure by way of a complete picture.

The combination of these issues, my Lady, really reinforces the requests that we have been making for some time, some might say the drum that we have been beating. Primary concern is that disclosure is coming too late for adequate consideration. A predictable effect of individuals and government departments running down the clock with internal searches and delays in prevarication is the inevitable reduction of time and resources available for public scrutiny at the other end, and that is increasingly of concern.

My Lady, we reiterate our request, and it will come as no surprise, to have sight of, if not input into, the Rule 9 requests. The revelations on Twitter reinforce that, if I may say so. Having sight of those Rule 9 requests would be, firstly, instrumental in ensuring the families’ continued confidence in this process, but secondly they are also likely to be the yardstick by which the answers that come in response to them are measured. And so we do invite you to reconsider disclosure of those requests so that we can compare and contrast the answers that come.

As has already been observed by Ms Maragh, it is important and we know my Lady will hear from bereaved family members as part of Module 2; Module 2, we submit, will be significantly the poorer if it does not hear and listen to those most directly affected, and it’s a submission that is echoed by many of the core participants in the room today.

A significant measure of the adequacy of government response is the impact that it had on those most directly affected. We note what Mr Keith has said today by way of update and observations. Any submissions or suggestions that we make going forward in relation to those from whom you should hear will bear in mind at all stages the need to assist the Inquiry’s work in this module and on the issues under consideration. But our clients have a great deal to say, and although their experiences and perspectives have been informed by the magnitude of their individual loss, it is not limited to that. So we urge you to take a generous approach to the time allocated to hearing from the bereaved, and indeed from other core participants in civil society, in this module.

My Lady, I need say nothing about the issue of Cabinet collective responsibility, given the update, and we have referred in our written submission to our view of the announcement in relation to panelists. We rely largely on those submissions, but we also join forces with the voices from the Cymru group in observing that the opportunity for you to be assisted by panel members, and particularly those with a detailed knowledge of the devolved administrations, appears to have been missed, in my submission, by the Prime Minister.

But it is not too late. We would strongly urge the Prime Minister, through you, to reflect on that latest decision, to recognise the value that diverse and experienced panel members could bring to this process. And, given what we know to be the problem or the source of delays, it is, we submit, unfortunate for the Prime Minister to rely on perceived criticism around delays as a reason to deny the fullest possible scrutiny.

In relation to the list of issues, my Lady, we endorse and adopt the submissions that you have heard. We had made submissions, specific observations in relation to the interface between this module and Module 2C from a Northern Irish perspective, but we see the sense in Mr Keith’s submission this morning that that interface is perhaps best ironed out when the list of issues in relation to Module 2C is closer to its final form. Our work in relation to responding to the Module 2C list of issues is proceeding apace, so that we can respond fully within the deadline, which I think is next week.

My Lady, dealing then just briefly with expert witnesses before concluding on Every Story Matters and the tapestry.

We have been firm supporters of the Inquiry’s decision to approach expert witnesses, and we continue to be. We are grateful to Professor Hale and Professor Henderson for the care and detail in their report. The clarity of their report undoubtedly belies the great effort and skill that went into drafting them, but they are inevitably UK-focused and, although there is a nod, and in some cases that is an underestimate, more than a nod, towards Northern Ireland, we submit that more can be gained from their expertise, and it’s really in that vein that we have provided detailed responses which are intended to be constructive, and we would ask that both the Inquiry team and indeed the experts view them in that manner.

However, our responses are hampered in two regards. Firstly, because of this habit of not giving us the references upon which they rely, and we’re grateful that that observation has been taken forward with the experts. But, secondly, by the ongoing non-disclosure of witness statements from government departments and ministers and indeed others. One practical consequence of that, we submit, is that it may well be, on receipt of further statements, that the experts do need to be asked to consider and comment further; yet another piece of work for those involved in this Inquiry occasioned by the delay.

In relation to Every Story Matters and the tapestry, our concerns have found their voice in those of Ms Maragh. I think it can be summarised in this way: that at present the Northern Irish bereaved do not see their experience of grief or loss or trauma reflected in that tapestry artwork, nor for the moment in the outworking of the Every Story Matters, but we will persist in communicating with your team and those responsible to see how those issues can be resolved. Our clients remain very actively engaged, and my Lady, very willing to assist you in understanding their concerns but also reaching the conclusions that this Inquiry really needs to reach sooner rather than later.

Thank you.

Lady Hallett: Thank you very much, Ms Campbell. In relation to that last point, I mean, I know that when you make offers of help you mean it on behalf of those whom you represent, and going back to the impact film, to which I referred earlier this speaking to Ms Maragh, the first impact film that’s been produced, and I do hope will be able – feel that they can watch it, because it is extraordinarily moving, and we will have to have a number of warnings before it is shown, but it shows a diverse group of bereaved people speaking about their loss in the most extraordinarily moving terms, and, as I said to Ms Maragh, introducing items that I hadn’t realised I should be investigating. So it’s not only very moving, but also very helpful. And two of the most insightful participants do come from Northern Ireland on that film, so I am extremely grateful for the help that they have given, and I hope it does continue, and we’re always prepared to listen. So I hope that message has got across.

So far as the disclosure of the Rule 9 request, as you may know, that was not the Inquiry team that put the Rule 9 request on Twitter. I think Mr Keith may or may not be able to help as to who it was, but it wasn’t us.

Ms Campbell: I didn’t think it was, my Lady.

Lady Hallett: The last point really is in relation to timing. I do understand the very valid points you make about timing and the demands on everybody, the Inquiry team but also core participants. All I can say is that everyone needs to know that, as far as I’m concerned, these hearings for Module 2 will start in October, and so I’m afraid everybody, material providers, legal representatives, they’re all going to have to work very hard, I’m afraid. But that’s my present position.

So thank you very much for your submissions.

Ms Campbell: Thank you.

Lady Hallett: Right, Ms Mitchell.

Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Ms Mitchell: I’m obliged, my Lady.

Lady Hallett: I did say the layout of this venue wasn’t perfect, but … are you by a microphone? I can’t quite …

Ms Mitchell: I am. It remains red – oh, it’s gone green, thank you.

My Lady, we have taken careful consideration of what’s been said this morning and hope to restrict our submissions to less than 15 minutes. I’m obliged to the comments of the Chair and also Senior Counsel to the Inquiry.

There are seven discrete issues that I would like to raise.

The first simply is comment in relation to panelists. We note that a decision has only recently been taken that the Chair will sit without a panel. It’s disappointing that a decision has been taken so late and in such proximity to the hearings, under explanation that the Prime Minister was conscious of not wishing to delay the production of a report from this Inquiry.

This desire doesn’t seem to be a consistent approach of government in dealing with requests from the Inquiry, particularly as we’ve heard this morning in relation to Rule 9s.

The second issue is that of Rule 9 requests. The Scottish Covid Bereaved are obliged to Counsel to the Inquiry and the Inquiry legal team for providing the update that they have. It will come of course as no surprise to my Lady that the Scottish Covid Bereaved are concerned to understand that this process is not being carried out as it should by all government departments.

As ought to have been clear to those organisations, supplying insufficient detail suggests a lack of co-operation with the work of the Inquiry at the most fundamental level of the provision of specific information. The Scottish Covid Bereaved are grateful in respect of the transparent way in which Counsel to the Inquiry and the Chair is dealing with this matter, and anticipate that those in receipt of Rule 9 letters which have been responded to in a less than satisfactory way will now understand that they properly require to do so.

The Inquiry this morning and Senior Counsel to the Inquiry has mentioned the fact that repeated deadlines have passed and extensions have been required. It doesn’t need me to highlight to the Chair that if repeated deadlines are allowed to pass with impunity, a deadline becomes no more than a suggestion by which date documents should be provided.

The way in which these Rule 9 responses have been dealt with does not provide the Scottish Covid Bereaved with confidence that, where appropriate, the same parties understand and are properly implementing their disclosure duties.

We would ask this morning that the Chair, in the event of further time limits not being obtempered, gives consideration to what practical steps she can take in order to highlight to those who are not responding timeously to requests that this matter will not be tolerated by this Inquiry.

Number three, the redaction of material and WhatsApp messages.

We note of course what has already been said by the Chair and Senior Counsel to the Inquiry that these matters will shortly be addressed elsewhere. Briefly, the Scottish Covid Bereaved wish to make some observations which we hope will be heard and considered, primarily by the Cabinet Office, given we understand the view of the Chair and Counsel to the Inquiry already.

Again, it won’t come as a surprise to the Inquiry that the view of the Scottish Covid Bereaved is that whatever is supplied, retracted or otherwise, the process of consideration and retraction will have to be carried out by the Inquiry. Given the very short timescales left, caused by the unnecessary delay of the Cabinet Office, it is submitted that this in and of itself should be sufficient for the Cabinet Office to consider that matters should be passed unredacted to this Inquiry.

If it carries out that redaction process first and then gives it to this Inquiry, it means that the job has to be done twice. At a most practical level, this will no doubt possibly potentially delay this project further.

We would respectfully submit that sending to this Public Inquiry unredacted copies of everything would be consistent with the Prime Minister’s view that decisions should be taken with a mind to not delaying the production of a report by this Inquiry, and we would commend this as a way forward to the Cabinet Office.

The second issue of concern is that the Cabinet Office considers it is in a place to consider what is relevant to this Inquiry, for only then could it be assured that it is redacting things that it considers are irrelevant. The Scottish Covid Bereaved do not share the confidence of the Cabinet Office in this task. This Inquiry needs to obtain and provide to core participants documents that provide a transparent insight into the working of government during a lengthy period of national crisis. From what families of those who died during Covid have heard so far from those who have made the decisions, it does not inspire any confidence that by obtaining only formal documents this will suffice for us to be able to build a picture of what was happening. Matters which may not strike the Cabinet Office as relevant may be highly relevant in context.

The Inquiry is, of course, best placed to have the best insight into what is and is not relevant, and that is why Parliament has enacted a statutory scheme which places the Inquiry as the heart of deciding what is and is not relevant.

Finally, what is being sought is written records recording the work of public servants involved in taking decisions which affected millions of people in the UK. This Inquiry has repeatedly stated it will be robust, and its actions to date support that claim. A robust approach in the present circumstances is the ingathering of potential relevant information in an unredacted form and allowing this Inquiry, the body best placed to do so, to carry out its job.

If parts of the documents are clearly irrelevant, they can be redacted by the Inquiry. Only then can there be confidence that the job is being done and the application of the proper test for the disclosure and that it is being done in a transparent way.

There can be no good reason for failing to provide the documents requested to the Inquiry in an unredacted form save for a pathological need to protect information for its own sake rather than there being anything intrinsic to the information that requires to be kept secret. The government is or at least should be answerable to the people. The public, through this Inquiry, are entitled to know what decisions were taken, by whom, and when.

Moving briefly on to the issue of WhatsApp messages in particular.

In relation to WhatsApp messages and informal methods of communication, we note that a request has been made for over 30 Cabinet witnesses to provide relevant information and that only three have complied, including Mr Johnson, and even then there have been redactions.

The Scottish Covid Bereaved remind the Inquiry of the media reporting of Mr Hancock’s book where it is said:

“We now chew over big decisions elsewhere and relegate formal meetings to rubber-stamping exercises.”

It’s therefore vital to understand where and when, using these, for example, informal methods of communication, where these big decisions were being taken, and that’s why it’s vital that this information is captured and presented to the Inquiry in an unredacted format to allow this to happen.

At the preliminary hearing on 1 March we stated that anything less than full disclosure would be considered as an attack on the integrity of both the UK and the Scottish public inquiries by the Scottish Covid Bereaved. We said that no individual, no matter how powerful, can be allowed to interfere with the pursuit of truth, justice and accountability in this Inquiry. Those who lost their lives to Covid-19 deserve nothing less.

At the time, Hugo Keith KC explained to the Inquiry that each witness to the Inquiry had been asked to disclose emails and other correspondence relevant to the issues addressed in their proposed witness statements, and informal or private communications about the government’s response to the Covid-19 pandemic to which they were party.

He added that the documents include but weren’t limited to WhatsApp group messages, private messages, email communications, contemporary diary or other notes, and explained that he had cast the net widely and with a fine mesh.

In relation to Scotland, we have been advised by the Scottish Ministers’ counsel that the former First Minister Nicola Sturgeon was asked for such informal message but she has none. Ms Sturgeon is, of course, due to give evidence along with the former Deputy First Minister, John Swinney, Catherine Calderwood and former health minister Jeane Freeman in Module 1 in three weeks’ time.

The Inquiry will know that there will be overlap between witnesses to this Inquiry and witnesses to the Scottish Inquiry.

A request has also been made in the same terms by the lead solicitor Aamer Anwar for the Scottish Covid-19 Inquiry in relation to WhatsApp messages.

On 4 June on BBC Scotland a former health minister, Jeane Freeman, appeared on the programme and was asked for all WhatsApp messages and other materials to be released. She stated, “Nobody’s asked for these WhatsApp yet from the Scottish Inquiry, so therefore nobody’s refused”. We note that Ms Freeman limited her comments to the Scottish Inquiry, but in light of all of the foregoing, the Scottish Covid Bereaved have a number of questions.

As previously stated, it’s for the Inquiry Chair to determine what is relevant or potentially relevant. We understand that if a witness says, “I have some things of relevance”, then the position of this Inquiry is that the information should be provided in whole in order then to establish what is relevant and what is not relevant.

What we ask, though, is where a witness says, “I have nothing of relevance”, in relation to a request for informal communications, is that an end to the matter? Is this primary consideration of all communications the start and the end of that process?

Because the Scottish Covid Bereaved would submit that the Inquiry should determine whether or not there is anything relevant to the Inquiry, and not the person from whom the informal communication method is requested. Given the fact that we are told that formal meetings were rubber stamped, it may be, for example, vitally important about the organisation or the timing of a meeting which would not perhaps strike anyone as immediately relevant to the Inquiry, but in fact could absolutely be so.

It’s submitted that, despite the clear way in which this has been asked for, it might not be clear to witnesses that if any communication has been made by a witness which relates to their involvement in Covid, the data should all be made available for the Inquiry to carry out this process.

Can we be certain that the witnesses are carrying out this primary test correctly?

Further, apart from Ms Sturgeon, we are not aware if any of the other Scottish witnesses relevant to this module have considered whether any type of this information ought to have been provided to the UK Inquiry. We would submit that Ms Sturgeon and any other Scottish minister should be no different a position to the position of Mr Johnson, Rishi Sunak or Matt Hancock, and that, if not already done, a request should be made of the Scottish ministers to provide to the Inquiry any communications held by informal means, in order that the primary relevance test can be carried out by this Inquiry.

My Lady, I only have a short number of comments still to make, but I note the time. Would my Lady prefer me –

Lady Hallett: I’ve just been told, Ms Mitchell, that Ms Heaven, who is speaking for the Covid-19 Bereaved Families for Justice Cymru, can’t be here this afternoon, so if everyone will forgive me, and if their tummies aren’t rumbling too much, I would go on, complete your submissions and Ms Heaven’s.

Ms Mitchell: I’m obliged and I will take it short, my Lady.

Lady Hallett: Thank you.

Ms Mitchell: In relation to Cabinet collective responsibility, we note the Cabinet Office may no longer wish to rely on this principle, and we look forward to hearing from Mr Chapman in this regard.

We would ask, rather than me reiterating it here, that the Cabinet Office read the written submissions provided in this regard to understand the position of the Scottish Covid Bereaved.

As will be unsurprising, it is that the Scottish Covid Bereaved are put short of the view that there is no principle which, in the modern day, should prevent proper scrutiny being brought to bear on the decision-making process taken by publicly elected servants in circumstances where the lives of millions of people depend on those decisions being properly taken.

Five, disclosure to core participants.

We note the progress being made with disclosure for Module 2 and the work being done to provide these as soon as possible. We note the alarming number of 35,000 documents. We simply want to place a flag, my Lady, to note that we are concerned that the number of documents which were being disclosed means that there will be little time for core participants to assess these to a meaningful degree up to and before the Inquiry is due to begin. We appreciate, and of course desire, the remarkable pace that matters are taking place, but we have to flag up the possibility in the future that it may be we have to effectively let the Inquiry know that questions that we are being asked or things that we’re being asked to contribute to can’t be meaningfully contributed to at that time until we have a better grasp on disclosure.

We understand that we are having a great deal of input into how matters are done, provisional list of witnesses, provisional list of issues, proposed evidence proposals, and even questions for witnesses. But all those can only have proper input if we properly understand the disclosure in advance. I appreciate it will become a chicken and egg problem, but I simply flag up at this stage that we may need to revisit that matter and inform the Inquiry that we’re not yet in a position to answer timescales which have been set.

Number six, Every Story Matters.

We note that senior counsel explained that the Inquiry does intend to call a range of witnesses from across bereaved groups, and the Scottish Covid Bereaved are happy to help in that regard. We also look forward to seeing the first impact films on 13 June.

Finally, seven, a practical issue, and this is in respect of all modules. We attended at the familiarisation hearing this morning and it was explained to us how the transcripts would work, and that we would be able to intermit with those transcripts, by way of highlighting, by way of editing, by way of taking annotated notes. That’s all well and good, until we were told that, however, we can’t keep those, and at the end of the day those disappear. Which unfortunately, in a practical sense, simply defies the point of the process, because it means that there is no way of us being able to record that.

We would ask that the Inquiry look into software which would allow participants to save the annotated transcripts in order to avoid duplication of work, so as not to provide added expense to the public purse if that work has to be duplicated after hours of the Inquiry.

These are the submissions for the Scottish Covid Bereaved, unless there is anything further, my Lady.

Lady Hallett: No, thank you very much indeed, Ms Mitchell. As ever you make some important points, and the last one I had no idea. I will see whether anything can be done. If it can be done, we will do it, but I’m not sure, I’ll will have to check.

Could I also thank those whom you represent for their participation in the first impact films, there should be a series of films, because, as I said earlier, it was extraordinarily moving, and I know that Scottish Covid Bereaved took part in it, so thank you very much.

Ms Mitchell: I’m obliged.

Lady Hallett: Right, Ms Heaven, where are you? Over there.

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

Ms Heaven: Thank you, my Lady. I only intend to make very brief submissions, and you will be glad to hear that I’ll finish well before the lunch break, and thank you for hearing me now.

My Lady, as you know, I represent the Covid-19 Bereaved Families for Justice Cymru. Many of those whom I represent are not able to be here today, but they are, as you will be aware, watching and listening intently.

My Lady, can I first address the recent decision of the Prime Minister that you will not be sitting with a panel. We understand that the Prime Minister is apparently concerned about the length of time this Public Inquiry will take to reach its conclusions. My Lady, we know from being involved in Module 1 that this Inquiry is working at breakneck speed. My Lady, we know that you are determined to avoid unnecessary delays because you have recognised the importance of learning lessons as soon as possible, and those whom I represent fully support this approach.

My Lady, a thorough, rigorous and properly informed public inquiry should not be placed at risk out of a concern for public criticism about delay. My Lady, we of course do not question your thoroughness in these proceedings to date. However, we do consider that a panel is going to be essential in later stages of this Inquiry, particularly when considering the instruction of further experts.

It should not lead to delay if appropriately managed. Indeed, it should speed things up. The reason we raise this issue now, of a panel, is to ensure that there is a proper understanding of devolution and the impact of Covid-19 in the devolved nations. As you know, Wales, unlike Scotland, does not have its own public inquiry, and as you know, in Module 1 we have expressed some concerns that many of the draft expert reports are largely insufficient in their consideration of the devolved nations. We continue to submit that this Inquiry and you, my Lady, would be significantly assisted by panel representatives for each devolved nation.

Now, of course, this decision, we understand, is not a matter for you, it’s a matter for the Prime Minister. We are aware that you consulted with the Prime Minister, or he consulted with you, prior to his announcement, so we therefore simply ask that you consider inviting a further discussion of this issue with the Prime Minister, in particular well in advance of the devolved nations’ specific modules and in the case of Wales.

If that process is to happen, we would value the opportunity to be kept informed so that our members can have an opportunity to further express and develop their views and concerns to the Prime Minister through you in a timely and constructive fashion.

Briefly, in respect of Rule 9 matters, I wish to make the following submissions: my Lady, you’ve ruled against the release of Rule 9 requests to core participants and we note that Mr Keith has raised this matter again today and made clear that your decision remains. However, we do wish to raise this topic once again in light of the deficient and, quite frankly, wholly inadequate witness statements that have been produced by some members of the Welsh Government for Module 1. The vast majority of these witness statements have simply failed to address, in sufficient detail, key aspects of the pandemic planning and preparation in Wales. Many of these statements do set out the Rule 9 questions that have been asked and on occasion the Inquiry has unfortunately, it appears, not asked sufficiently detailed questions.

This has allowed certain very senior ministers in the Welsh Government to simply not address key aspects of their political life when they would or ought to have known about pandemic planning in Wales. This risks there being gaps in the Inquiry’s knowledge in relation to Wales for Module 1.

Now, clearly the Inquiry is entitled to assume compliance with the duty of candour, but unfortunately, certainly in the case of Wales in Module 1, some of the Inquiry’s very broad rule 9 questions have led to vague answers, often lacking in sufficient detail.

In order to avoid further statements having similar flaws in Module 2 – and obviously, from our perspective, in Module 2B – and to save the Inquiry chasing witnesses for multiple amended statements, we would ask again that some consideration is given to core participants being able to at least feed in to Rule 9 requests, or the questions that your Inquiry team draft, so that potential topics for inclusion can be raised at the earliest possible opportunity with the Inquiry.

My Lady, as you know, many of those whom I represent were involved in their professional capacities with the Welsh Government, NHS Wales, and other institutions associated with the pandemic and the response, and we will be able to use this knowledge to flag to the Inquiry certainly discrete relevant areas that ought to be asked about in the Rule 9 process.

My Lady, in respect of disclosure, we make the following short points: we invite the Inquiry legal team to clarify the dates by which core participants can expect witness statements and other materials to be disclosed. As you know, in Module 1 many statements have undergone revision, in part due to some of the concerns about lack of detail that I’ve just mentioned. As a result, in Module 1, core participants with very little time – it’s left us with very little time to review material prior to the substantive hearing beginning in a week’s time, and certainly in Wales we’re still waiting for key disclosure.

In order to avoid a repeat of this situation in Module 2, we simply ask you to clarify as soon as possible whether the deadline that you provisionally set out at the end of July 2013 for outstanding disclosure is a hard deadline, and that would be for the final versions of statements to be released and also to inform core participants of the volumes of statements that can be anticipated around this date.

My Lady, we welcome Mr Keith’s indication a moment ago that the Inquiry will keep core participants informed of issues of non-compliance with your requests. My Lady, we therefore ask the Inquiry to clarify whether the concerns around the production of material by a number of government departments in Module 2 includes Welsh governmental bodies. As I have already indicated, we are concerned that in Module 1 the Welsh Government does not appear to have been engaging with the Inquiry to a satisfactory degree. If this is the position in relation to Module 2, then we consider that the Welsh public should be told.

In respect of the Cabinet Office issue, those whom I represent offer you their full support, and clearly endorse the very powerful submissions that have been made today on behalf of the other bereaved family groups. As, my Lady, you will understand, the devolved administrations will be watching these latest proceedings very closely, because there is no doubt that they will also hold large quantities of WhatsApp and other communications that they will not want to disclose to you.

On that point, my Lady, can we ask for clarification whether the Welsh Government has also been asked to disclose all WhatsApp messages and related communication, and an indication of their response?

As with the other bereaved groups, the Covid-19 Bereaved Families for Justice Cymru reiterate the central importance of all bereaved families having confidence in this Inquiry, and my Lady, those whom I represent understand that you are taking all the necessary steps to ensure that this remains the case.

We note what Mr Keith has said today in respect of applications for a restriction order. In the event that there is an application, we suggest, as we’ve done in writing, that core participants should be permitted to make written and oral submissions on the procedural approach to be adopted, to determine such applications and to grant the right to be heard on the substance of each application.

We understand from what’s been said today that this is a matter which is to be determined at a later date, subject of course to an application being made.

In respect of the disclosure of materials relevant to Whitehall’s engagement with the devolved administrations, we were deeply concerned to note that such disclosure has been delayed. Mr Keith touched a moment ago on cross-disclosure between the modules. In respect of Wales, it would assist in Module 1, which of course is looking at the system for communication between the United Kingdom Government and the devolved administrations, to see how communication actually then unfolded in Module 2.

So, in summary, we ask that these communications are disclosed, if they’ve not already been disclosed, as a matter of urgency.

Briefly on expert witnesses, we note that for Module 1 many of the expert reports were in draft when the evidence proposals were circulated by the Inquiry. This naturally created difficulties for core participants, not knowing what the final expert report would say. Therefore, in Module 2 we ask you to introduce a deadline for the service of final expert reports to ensure that they are then served in advance of your CTI’s evidence proposals.

As to the substance of the draft expert reports, we once again do raise a concern at the level of detail and analysis in these reports in relation to Wales. As you know, we’ve raised concerns about the lack of specificity and the limited comparison between the devolved nations and frequently a distinct lack of analysis of the communication and interaction between the devolved governments and the UK Government. We obviously therefore look forward to receiving the finalised expert reports, which we very much hope will

contain more analysis in relation to the issues that

I’ve just highlighted.

Finally, my Lady, the Covid-19 Bereaved Families for

Justice Cymru once again offer their continued support

to the commemoration and to Every Story Matters, and

they wish to make clear to you today that they will

continue to work with your team in developing your

understanding of the experience of the bereaved families

of Wales.

Thank you very much.

Lady Hallett: Thank you very much indeed, Ms Heaven. I’m

very grateful for your offers of support as well.

Right, could we return, please, at 2.15.

(1.15 pm)

(The short adjournment)

(2.15 pm)

Lady Hallett: Right, Mr Metzer?

Mr Metzer: Yes.

Lady Hallett: I’d made a note to myself to look to my left,

but I’m afraid I hadn’t found it in time.

Submissions on Behalf of Long Covid Kids, Long Covid SOS and Long Covid Support by Mr Metzer

Mr Metzer: Thank you.

My Lady, I address you on behalf of the Covid

groups. I shall start with specific issues relating directly to our clients, and then turn to wider procedural issues.

My Lady, people with long Covid deserve answers. Mr Keith King’s Counsel has said on previous occasions, and I agree, that transparency and public confidence is core to the functioning of this Inquiry, and in the same vein people suffering with long Covid deserve to know what the government knew about the long-term effects of this pernicious disease and what steps, if any, it took when confronted with the reality of huge numbers of people not recovering from it.

I acknowledge Mr Keith’s comments today that long Covid will feature in Module 2, despite its total absence from the first draft of the list of issues, and that some Rule 9 requests including questions related to long Covid, but it is extremely disappointing that detailed consideration is planned to be reserved for Module 3 only.

We respectfully suggest that this position still misses the point.

The fact that long Covid will be investigated in the context of healthcare in Module 3 does not obviate the need for a thorough investigation of government decision-makers’ recognition and consideration of long Covid.

This is in relation to the spread and transmission of Covid-19. These are matters firmly within the remit of Module 2. This is a crucial and fundamental distinction. Long Covid requires proper examination in this module.

The building blocks of the investigation in this module have been laid down, but most troublingly those blocks have hitherto ignored our clients and their concerns. My Lady, there is a problem which remains unresolved despite months of direct correspondence and repeated pleas to the Inquiry team. The problem, put simply, is that Module 2’s whole approach to long Covid has been profoundly flawed. Long Covid was initially overlooked in the context of Module 2. Following our representations, it has been added, seemingly as an afterthought, some Rule 9 requests, but its relevance is still not appreciated. That is evident not least in the approach to expert reports and the draft list of issues.

First, none of the expert reports received to date address long Covid, long-term sequelae or long term morbidity. We are told that the expert reports are drafted at “too high a level” to consider long Covid specifically. This is lamentable. The Inquiry will be deprived of the benefit of expert comparative opinion on the effectiveness of the government policies on preventing and minimising long-term morbidity, and whether there was adequate data collection and proper use to respond to this and long Covid.

Secondly, and even more importantly, the draft list of issues omits any reference to morbidity and long Covid entirely, which has stunned us all. As it stands, long-term morbidity has not been identified as a discrete line of investigation in this module at all. It frames the investigation on decision-making only through the lens of its impact on mortality and hospitalisations. This approach is myopic and far too narrowly defined. It deprives my Lady from examining the impact of decision-making on long-term morbidity and long Covid.

I’m sorry to report that the complete omission of long Covid in the draft list of issues has shaken our confidence in the Inquiry’s process. While of course we welcome the comments today that long Covid will be investigated in this module, we cannot express strongly enough our and our clients’ frustration at the failure to reference long Covid in the list of issues.

We maintain that long Covid cannot simply be tacked on to the list of issues like an afterthought, but instead should be embedded as a key measure of the adequacy of government and administrative decision-making in the framework, necessarily informing the direction of the Module 2 investigations.

So, my Lady, key foundational blocks to the investigation of long Covid in Module 2 are glaringly missing. Long Covid affects almost 2 million people in the UK, over 3% of the population, and growing, and I say it again, they deserve and are entitled to answers.

We suggest that there are at least six broad framework questions on long Covid which must inform the investigations in Module 2:

  1. What decision-makers’ understanding of long-term sequelae and long term Covid was.

  2. What was the role of patient advocacy in the recognition and response to long Covid?

  3. Was data collection and modelling of long Covid measured?

  4. Was the prevalence and the risk of long Covid taken into account when decisions like the imposition and then easing of non-pharmaceutical interventions were adopted?

  5. How and to what extent did decision-makers warn the public about the risk of developing long Covid and take the disease into account in public health communications?

  6. Whether 2 million people with long Covid today was avoidable.

We are grateful for the express support from bereaved families and other core participants. A change in approach needs to start from now, my Lady, to give proper effect to your stated declaration that “investigation of how decisions were made, communicated and implemented will include investigation of how long Covid was considered in decisions on the implementation of lockdown measures”.

My Lady, I now turn to procedural matters. We have heard your comments made to Ms Maragh this morning in relation to evidence from affected groups. We understand and sympathise with the immense challenges you face in managing an Inquiry of this size, but we repeat our call for the Inquiry to hear evidence from survivors of long Covid.

Long Covid groups’ evidence is essential to this module investigating whether there was a systemic failure by decision-makers in acknowledging and responding to the risks of long-term morbidity. We urge that direct evidence is heard from the Long Covid groups to understand whether their suffering could have been avoided.

In addition, we share the concerns expressed by the TUC, the bereaved families and the bereaved families from Northern Ireland, that the evidence gathering process is disproportionately focused on government evidence. A failure to gather sufficient evidence from organisations outside government may skew the overall picture and prevent adequate scrutiny of the government decision-makers.

My Lady, I addressed you at the last hearing on long Covid being the first illness to be recognised through patient advocacy. As you are aware, our clients were compelled to form into advocacy groups because decision-makers dismissed and overlooked their suffering, causing that to be prolonged and become more pervasive.

I reiterate, they remain willing to speak about their unique experiences of advocating for the recognition of long Covid to ensure the Inquiry is equipped with the full picture. They are not only impact witnesses but also have direct evidence of their advocacy to influence decision-makers. This means they played a direct and significant role in influencing decision-makers to recognise and respond to the risk of long Covid.

My Lady, I rely on our written submissions which set out, hopefully, some constructive procedural suggestions to facilitate preparation for the substantive hearings. Mr Keith’s comments this morning have answered many of those points and I do not seek to repeat our submissions. At this stage I have two short additional observations to make.

First, in relation to expert reports, we understand that Module 2 will be relying on the expert report on long Covid commissioned by Module 3. This is welcomed, and we agree that Module 2’s investigations will be assisted by expertise on long Covid if this is provided ahead of the Module 2 hearings.

We welcome confirmation that the expert reports from Module 1 of Professor Bambra and Professor Marmot are being disclosed in Module 2. We would repeat our call for the expert reports from epidemiologists from Module 1, namely the reports from Professor Jimmy Whitworth and Dr Charlotte Hammer to be also disclosed to Module 2 core participants.

Secondly, we note Mr Keith’s comments this morning that as the Inquiry is moving at pace, decisions will need to be made about what evidence will be called and what questions will be asked. If this leads to the Inquiry limiting the scope of the investigations in Module 2, we ask that this be made clear to all core participants.

I now turn to the wider issue of government departments, particularly the Cabinet Office, and disclosure.

I wish to end on a few short observations on this topic.

Public inquiries concern accountability and are created to restore public confidence and learn lessons. The core tenets of public scrutiny and transparency underpin every public inquiry, none more so than one investigating decision-making in a pandemic that has caused such widespread suffering and damage nationally and worldwide.

It is shocking and frankly appalling that the pillars to this Inquiry have been shaken by the Cabinet Office’s continued and wholly unmerited resistance to providing unredacted disclosure and the possible application for wide-ranging restriction orders. It cannot be said honestly that it is in the public interest to only hear half the story. The full story must be shared to ensure that the whole truth comes out.

I note that Mr Keith back at the first preliminary hearing commendably spoke about the “targeted approach” taken with the Cabinet Office disclosure, and even those many months ago stated that internal communications, including WhatsApps including from the Prime Minister, Number 10 and other senior officials, had been requested.

Months later it is highly regrettable that the Cabinet Office is deliberately obfuscating. We are also concerned by media reports of a letter from Cabinet Office to the Right Honourable Mr Johnson MP asking him to submit his witness statements and exhibits to Cabinet Office for redactions to be applied before submission to the Inquiry.

The approach of government to disclosure creates a dangerous precedent of exceptionalism by claiming exceptional processes and procedures for itself which do not apply to any other core participant. It is one rule for them and another for everyone else. The optics are terrible, and seemingly mirror many of the concerns about the government’s approach to rules throughout the pandemic.

We are concerned to learn that the Foreign and Commonwealth Department is now echoing the Cabinet Office’s approach.

We wish to commend my Lady respectfully for the robust and proper approach you have taken on this fundamental issue. We also endorse the important well-merited points made by my learned friend Ms Maragh for the bereaved families. We recognise that regretfully, as judicial review proceedings are under way, the question of redactions is no longer just a matter for you for now, my Lady. Nonetheless, we wish to express our dismay at the delay and unnecessary extra expenditure this unwelcome litigation has spawned.

The present position is difficult to comprehend, not least because the former Prime Minister, Mr Johnson, has confirmed publicly that he does not object to disclosure of his WhatsApp messages and diaries in unredacted form, and has now belatedly provided some of the material.

Further, we are pleased to note that the question of restrictions and Cabinet collective responsibility may no longer be an issue. We support Mr Keith’s request that this be confirmed as soon as possible to avoid further delay in disclosure to the Inquiry and onward to the core participants.

We echo the bereaved families’ request to you, my Lady, that if the anticipated section 19 application is made, that it is disclosed to all core participants and that there is a formal process for submissions on the issue to be fully ventilated.

I make two further points connected to issues arising from Cabinet Office’s disclosure. First, in respect to Mr Johnson’s phone containing messages up until April 2021, he has asked for assistance from Cabinet Office to turn on his phone so that he may review them for relevance. As with all disclosure, we firmly maintain that the Chair and no one else must be the final arbiter of relevance.

Secondly, it may assist to allay any public concerns to have the swift disclosure for the Rule 9 notices sent to Mr Johnson and other members of the government. As Ms Campbell King’s Counsel has stated, the contents of Mr Johnson’s Rule 9, dated 3 February 2023, has been reported in the press and on social media.

We similarly ask that the core participants, including my clients, who have suffered such harm from this disease, are provided with them through the formal process.

My final observation is that given the current turn of events, it is impossible not to conclude that the government’s approach is anything other than seeking to protect itself and those now in power from full and appropriate scrutiny under the wide terms of reference. To allow the Cabinet Office to determine relevance of all the material itself flies in the face of all the objectives and purpose of this Inquiry.

My Lady, that is all I wish to say, unless I can assist you any further.

Lady Hallett: No, Mr Metzer, thank you very much indeed. In relation to the list of issues, I had understood that the very valid points that you make were covered, but I will – having heard the disappointment that you have expressed, and I understand, I will discuss with the team whether greater specificity – I never say that word – would be helpful. So I will discuss with them. So thank you for the points you made.

Mr Metzer: Thank you, my Lady, I’m much obliged.

Lady Hallett: Thank you.

Right. Mr Friedman.

Submissions on Behalf of Disabled People’s Organisations by Mr Friedman

Mr Friedman: Good afternoon, my Lady. I’m just waiting for the furniture to be moved around. With gratitude. And perhaps I should thank everyone for the work that’s been done on this building, because I’ve noticed the change.

Thank you.

Lady Hallett: We haven’t properly equipped us with lecterns by the sounds of it, Mr Friedman.

Mr Friedman: I’m told it’s going to happen.

My Lady, thank you.

I represent the Disabled People’s Organisations, or the DPO, and they are Disability Rights UK, Disability Action Northern Ireland, Inclusion Scotland and Disability Wales.

Given the matters under discussion today, particularly Cabinet Office disclosure, it’s important to recall why this Inquiry is valuable to everyone, why it is valuable to our clients, and consequently why the stance of the Cabinet Office is so troubling.

This Inquiry is like no other because Covid involves us all. No one and nothing is the same as before. The harm done is still felt. The harm to some is far worse than others. And from the Inquiry, people want truth, humility where it is due, and rigorous lesson learning for the inevitable next time.

For those particularly impacted upon and marginalised, like disabled people, they want change. An Inquiry of this nature constitutes an exceptional form of open investigation and learning. We agree with what you have said before and what Mr Keith King’s Counsel has said today: nothing else will cumulatively be able to draw together evidence, test it in public, mandate real accountability, involve core participants and create a legacy of fact-finding and recommendations like this Inquiry can. Indeed, the work envisaged by the terms of reference and provisional list of issues will empower the public at large to understand and say more about Covid in the future. All that is why, although Inquiries are commissioned by governments, they are for the people.

I can deal with why this Inquiry is so valuable to Disabled People’s Organisations, or the DPO, by focus on the provisional list of issues and two specific matters. The first is vulnerability; the second is resilience.

On vulnerability, my Lady has repeatedly expressed your determination to investigate the consequences of inequality, and to that end you have described it as vital for Module 2 to examine the impact of decision-making on those who, in your words, are at risk or vulnerable or marginalised. The DPO strongly favour this approach and want to do all they can to support it.

It is therefore welcomed that the provisional list of issues refers to the category of “vulnerable and at-risk groups” in several places. However, whereas the draft list appears to take the definition of these terms as a given, the evidence suggests that the concept of vulnerability was constructed over time, moving incrementally from a medical and shielding focus to a broader social and economic focus. How and why the vulnerable are recognised, defined and distributed to is, we respectfully submit, a key part of this module. So, again, it increases the value of this process that we hear that your counsel team this morning are actively engaging with that particular point.

My Lady, in the Covid response, the opposite of vulnerable is not invulnerable, it is resilience, a word that is frequently used in government documents and forms part of the title of Module 1. However, one of the costs of focusing on groups as vulnerable is that it overlooks that they are marginalised precisely because they lack the assets, human, social, economic and institutional, to enable their resilience. That is why we have submitted that the consequence of any failure to plan for pre-existing inequalities identified in Module 1 is worthy as a Module 2 issue in its own right. All modules after Module 1 should serve to deepen the Inquiry’s appreciation of what resilient society planning requires and how and why it was missing prior to Covid-19.

My Lady, that is the context for the Cabinet Office objections to full and transparent disclosure. We support and endorse the Inquiry’s approach to date, and say this: although the formal applicant seeking to withhold disclosure is the Cabinet Office, their tactics are sanctioned by this government, the Prime Minister, and his ministers.

As of today, we know that the government are creating three problems that threaten the Inquiry’s ability to get to the truth.

The first problem concerns the Cabinet Office wanting to be the judge in its own cause as to what is potentially relevant and what is not.

The second problem is unacceptable delay. Anyone remotely informed about the governance of Covid-19 will know that WhatsApp messaging played an important role. The Inquiry determined that it wished to see the messages as well as notebooks and diaries, and yet it took from 3 February 2023 to close of business on 26 May for the Cabinet Office to disclose that they did not have core documents concerning Mr Johnson.

The third problem, which based on this morning may or may not go away, we don’t yet know, is that government has been expressly willing to give the Inquiry the Cabinet minutes but has been saying up to now that they would not allow those minutes to be made public to core participants and the public at large. We are told they have cited the political, not legal principle of collective Cabinet responsibility.

Taking the three problems in turn, for reasons detailed in our written document, we say the government is wrong in law and its approach is ill judged. Based on the update this morning, let me summarise where we understand things to have got to.

First, on the production of the full specified documents, the Inquiry, as investigator and fact finder, has the power under section 21(1)(b) of the Inquiries Act 2005 to demand any documents that “relate to a matter in question at the inquiry”. The word “relate” is a broad term, certainly synonymous with a power to mandate materials that the Inquiry considers potentially relevant, and when the scheme of the 2005 Act is read as a whole, likely broader than that.

Dominic Cummings, Isabel Oakeshott, Matt Hancock and the Sue Gray report have all informed the public how important WhatsApp messages are going to be to this Inquiry. If multiple matters of state and policy were communicated outside the discipline of formal minutes and public recording duties, then the Inquiry needs to see the full picture.

But it goes further than that, what were once conversations in the corridors of power, not contained in any minutes or formal records, are now recorded. It is through WhatsApp messages that disabled people know that in November 2020 Matt Hancock allowed the whips to threaten funding for a learning disability hub if the MP for Bury North did not vote with the government on the tier system.

Instant messaging can show bias that other sources of evidence conceal, and those who reviewed these materials for relevance can themselves be prone to unconscious bias, especially if they do not appreciate certain forms of discrimination in others, or understand the full panoply of issues like the Inquiry will.

It would be wrong for a chair to allow any party to redact documents before the Inquiry has seen them, and no reasonably informed person could respect an Inquiry process that allowed that to happen. The idea that the Cabinet Office, as a state provider of documents, should enjoy some privileged status in this regard is neither recognised in the statute nor conceivable in a module where state decision-making is under scrutiny. No irrecoverable damage is done to privacy or other interests by providing unredacted documents, as the Inquiry will and must consider itself redacting documents that remain unambiguously irrelevant and strictly personal.

As understood from my Lady’s ruling, analogies with criminal and civil proceedings in this context are plain wrong, because when trial parties dispute relevance, the judge will inspect the documents. The stance of the Cabinet Office is even more flawed, because it overlooks that the Inquiry is the investigator as well as the fact finder. In no other investigatory process known to UK law would a party under investigation be allowed to redact documents for relevance as they go out the door.

Finally on this point, as the case law establishes, it is no good creating a dedicated expert tribunal under a senior judicial figure, with its specialist counsel and solicitors, at least two of whom, Mr Keith and Mr O’Connor King’s Counsel, have been dealing with disclosure out of Cabinet and other sensitive parts of the government all their working lives, and then suggest that the document provider knows better.

Second problem, we are bound to say there has been improper delay in communicating to the Inquiry that the Cabinet Office did not have documents relating to Boris Johnson. The story continues to unfold, with the statement from the Cabinet Office, which my Lady ordered but the Cabinet Office has put onto their own website. It’s dated 1 June. That statement catalogues serious mistakes. There is no justification for failing to tell the Inquiry from 3 February until 26 May that they did not have the documents, that Mr Johnson was refusing to release them or they had not secured them long ago.

Instead, the principal phone of Mr Johnson’s premiership, the phone he used until May 2021, and any messages on it have been entirely unaccounted for until this week.

The third government problem is, as I stand, the government’s still threatened opposition to full publication of documents such as the Cabinet minutes. Yes, their application has been made, but as things stand, that further threatened government-sanctioned delay and major challenge to the effectiveness of this Inquiry has not unequivocally been taken off the table. Until it is, we can only make a plea in the interests of all that the government pulls back clearly and once and for all.

Again, we have set out fuller reasons in writing in the hope that you will not need them and we will never have to argue them. But in summary, because time is short, and it’s important for the public to know what’s been going on, we do want to say why reassurance to you by the government on this issue is so important. The interest in maintaining the candour of Cabinet discussion at the time difficult decisions are made cannot rationally or justly prevent publication of such decisions in an Inquiry commissioned to study those very decisions. That is why we have cited the date of the government’s decision to commission this Inquiry. It was in May 2022 when the issues now under investigation were no longer live and the benefit of confidential discussion had passed. However, it’s the overall context that causes us to be so emphatic in our opposition.

The Inquiry contains within its terms of reference, created by the government, an express aim to “consider how decisions were made, recorded and implemented”. It is a provisional outline of its scope that “will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet as advised by the civil service, senior political, scientific and medical advisers and relevant Cabinet subcommittees”, and the Inquiry has just ruled, in disposing of the section 21.4 application, that there is “a need to investigate allegations that have been aired publicly regarding agreements between members of the government”.

That cannot be done in a manner that satisfies public confidence if collectively agreed Cabinet statements go public whilst important but potentially embarrassing disagreements between ministers go unpublished.

My Lady, the rest of our submissions for today are in writing. I want to say one more thing about why this Inquiry is like no other and its diminishment cannot be tolerated. Unlike in any other legal proceedings that the Cabinet Office seeks to compare it to, the wisdom of

government policy and the competence of our governors,

especially the Prime Minister and the Cabinet, are

directly under scrutiny in this Inquiry. It cannot be

forgotten that the Cabinet sat at the apex of what my

colleague Adam Wagner has called the Emergency State.

There is an enhanced need for this Inquiry to

scrutinise Cabinet decision-making and the mindset of

ministers, given that the law-making powers provided

under the Public Health Act 1984 granted so much power

to the Executive above and beyond the scrutiny of both

Parliament and the courts.

The Cabinet Office issues still at stake today

therefore lie at the heart of the intended scope for

Module 2, from WhatsApp messages to diaries to minutes.

It would in fact undermine the very principle of Cabinet

responsibility if the opportunity was missed to publicly

examine how the government worked in this exceptional

and fragile period of crisis.

My Lady, thank you.

Lady Hallett: Extremely grateful, Mr Friedman, thank you

very much indeed.

Right, Rajiv Menon King’s Counsel? Mr Menon.

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

Mr Menon: I’m just waiting for a lectern.

Lady Hallett: One lesson learned from today, more lecterns.

Mr Menon: Thank you.

My Lady, I appear together with Jennifer Twite of counsel for the children’s rights organisations, Just for Kids Law, the Children’s Rights Alliance for England and the Save the Children Fund.

I will be brief this afternoon, my Lady, as you have indicated that you have read and considered our written submissions and repetition will not improve them.

There are four short but important points we wish to make today orally.

Firstly, since we drafted our written submissions, the Cabinet Office has applied for a judicial review of your decision declining to withdraw your notice under section 21 of the Inquiries Act 2005, requiring the production of specified documents in unredacted form.

We echo the submissions of other non-state core participants that this is a shocking and unprecedented development which raises serious questions as to the government’s genuine commitment to a fearless and thorough Inquiry into its response to the Covid-19 pandemic.

We have no doubt that your legal team will rigorously oppose the Cabinet Office’s application in the Administrative Court so that the Inquiry can pursue all necessary lines of investigation and fully discharge its broad terms of reference.

We welcome my Lady’s indication today that this unfortunate application for judicial review will not delay the Module 2 evidential hearings that are scheduled to commence on 2 October. We would also welcome some indication, although we recognise that this may be premature, about when in 2024 you anticipate that you will be in a position to publish your Module 2 report.

Secondly, we wrote to your legal team on 11 May with our comments and observations on the proposed Module 2 list of issues, and we await your ruling on this matter.

We are grateful for Mr Keith King’s Counsel’s clarification this morning as to the Inquiry’s likely approach to school closures during Module 2. The only point I wish to reiterate today on this topic is that if you are intending to investigate, pursuant to paragraph 4(a) of the proposed list of issues, whether the right non-pharmaceutical interventions were considered by the government and whether they were used at the right time, then we presume that you will be looking at the full package of measures and non-pharmaceutical interventions deployed by the government, including the high-level decision to close schools for all children except the children of key workers and the most vulnerable children, notwithstanding that there is to be a later module on education and children with evidential hearings probably in 2025.

We would welcome confirmation, if possible, that our presumption is correct and that there is no need for the children’s rights organisations to worry about the absence of any mention of children or school closures in the list of issues, given the list is intended to be indicative as opposed to exhaustive.

Thirdly, we understand that you have not been persuaded, my Lady, that Sir Gavin Williamson, Secretary of State for Education from July 2019 to September 2021, should be sent a Rule 9 request during Module 2.

This, to be blunt about it, is disappointing. Exploration of the broad reasons for high-level political and administrative decision-making on school closures surely requires evidence from Sir Gavin Williamson. Given the Secretary of State for Education must have played a significant part in the government’s decision to close schools, we are struggling to understand why he is not at the very least being sent a Rule 9 request during Module 2.

It may be, on receipt of his witness statement, should a Rule 9 request be made, that you conclude that there is no need for him to be called live during Module 2 and that his evidence can legitimately be postponed until the later module on education and children. However, until you have considered his witness statement, and in particular his exact role in high-level decision-making on the issue of school closures, how can such a decision sensibly be made? Consequently, we urge you to reconsider.

Finally, Every Story Matters. After Ms Twite concluded her oral submissions on behalf of the children’s rights organisations at the second Module 2 preliminary hearing on 1 March, you made the following observation, and I quote:

“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.”

A few weeks later, at an Every Story Matters webinar on 23 March, a member of the Inquiry team stated that, and I quote:

“There are a number of issues around engaging with children and young people, and some quite high bars to reach in terms of safeguarding and protections. We are working with experts in children and young people’s engagement and participation, and hopefully will be able to update people shortly on progress with that.”

Today is 6 June, another three months have passed. Mr Keith King’s Counsel stated this morning that the Inquiry is developing plans to ensure we understand the experiences of children and that those plans will shortly be brought to my Lady’s attention for your consideration.

With all due respect, this is precisely what the Inquiry has been saying since the first preliminary hearing last October. We are still in the dark as to what, if anything, is happening behind the scenes. On the information we have been given, it appears that little or no progress has been made, since you acknowledged the importance of children being heard in March, to ensure that the United Kingdom’s more than 14 million children will not remain voiceless during the Listening Exercise.

The children’s rights organisations are justifiably, with all due respect, worried that without a swift action by the Inquiry to ensure the effective participation of children, the window will close and it will be too late. Without capturing the testimony of children’s first-hand experiences of lockdown, it will be impossible to learn lessons from the decisions made during the pandemic that impacted our youngest so heavily, and mitigate some of the negative impact that the pandemic inflicted on children.

We would welcome an update as a matter of urgency and a clear timetable on when Every Story Matters intends to make provision for children and allow them to exercise their fundamental right to participate in the Listening Exercise. And I stress the words “the right to participate”. Merely understanding the experiences of children or holding focus groups is not enough. We ask my Lady to give an unequivocal undertaking that all children who wish to participate in the listening exercise will be given an opportunity to do so, just as adults have been, otherwise Every Story Matters is, in reality, every adult story matters, and that simply isn’t acceptable.

My Lady, those are our submissions on behalf of the children’s rights organisations.

Lady Hallett: Thank you very much, Mr Menon. I accept entirely the force of your remarks about capturing the memories of children, and I undertake to pursue that issue urgently. Again, I have pursued it in the past. Maybe I should have pursued it even more, and I shall do so today. I undertake to do so. So thank you very much. And the other matters that you raise are obviously also very important. I will also take those into account.

Mr Menon: Thank you.

Lady Hallett: Thank you.

Mr Jacobs.

Submissions on Behalf of the Trades Union Congress by Mr Jacobs

Mr Jacobs: Good afternoon, my Lady, I appear on behalf of the Trades Union Congress, the TUC.

I address firstly the refusal of the Cabinet Office to provide full disclosure to this Inquiry. Our written submissions briefly addressed the legal issues at play. Those matters will now be for the Administrative Court and we do not address them here, save to reiterate what we consider to be a simple but important point. There is significant focus in the Cabinet Office’s application of relevance, of possible relevance of unambiguous irrelevance, but to us talk of relevance is merely a lawyer’s sleight of hand.

As Mr Friedman on behalf of the Disabled Persons’(sic) Organisations a few moments ago referenced, under the Inquiries Act 2005 you have the power to require the production of any document that is simply related to any matter under investigation. That is the statutory test.

“Related to” has a broader meaning than “relevant to”, they are terms of art. It requires simply some connection to your investigation and requires nothing by way of probative value. That is considered much later in the process.

It is quite clearly the statutory provision which affords you, as the Chair of an Inquiry, a designedly broad power to compel the production of documents. So we say that the legal basis of the approach of the Cabinet Office is thoroughly flawed.

We learn today, as we have in the media over recent days, that the position adopted by the Cabinet Office is ever more farcical. It is eight months now since this module was opened and it is only four months to the substantive hearings, but the Cabinet Office still has not told the Inquiry what relevant content and WhatsApp messages it holds, let alone disclosed them.

The former Prime Minister is seeking to circumvent the Cabinet Office position by direct disclosure, and the Cabinet Office is seeking to sway him with threats of withdrawing legal fees. Another branch of government, the Department of Health and Social Care, has provided full disclosure of messages to this Inquiry without any difficulty at all. It is chaotic and desperate.

The underlying mistake of the Cabinet Office is to approach this Inquiry as if it were a piece of civil litigation in which it can hold on to and conceal anything it doesn’t consider relevant and deploy legal argument as part of the game. This is not civil litigation. It is a public inquiry designed to uncover the true circumstances of a government’s response to a pandemic that cost many thousands of lives.

This public inquiry must inspire the confidence of the public, but what the Cabinet Office suggests as an approach, unashamedly, is counsel sitting with the Cabinet minister, or whoever the relevant person may be, to decide for themselves what is irrelevant and can be kept from the Inquiry. To the public, it would look less like a robust public inquiry and more like turkeys deciding whether to vote for Christmas.

We now have the issue of Cabinet collective responsibility. Let’s state in terms what is meant by that. It is that if different ministers held differing views, those differences of opinion should be kept secret from this Inquiry. What an absurd approach to a public inquiry. It is an approach of secrecy rather than of truth, and we hope it is right that it is an issue that is to be dropped and not resurrected.

The current government may have ordered this public inquiry, but perhaps it did so reluctantly and without actually wanting or being prepared to accept the scrutiny that this Inquiry must bring to bear.

Irrespective of the merit of the novel argument the Cabinet Office raises, there is something far more important at play: the public interest. That public interest is served by this Inquiry being allowed to proceed without being frustrated.

To the more than a million key workers in the pandemic, the willingness of ministers to be seen clapping outside their homes and showing support for key workers will ring hollow now that the Cabinet Office is fighting this Inquiry’s work as it seeks to learn the lessons from the pandemic and save lives in the future. Those who risked their lives to fight the virus, who held the hands of the dying and helped loved ones say goodbye from afar, who kept our lights on, who produced our food and filled our cupboards, who staffed the testing centres, who drove the buses, the taxis and the trains that got nurses to work, who taught our children and who stayed at home to protect others, deserve more than this unedifying spectacle of government ministers resisting government communications being made available to an Inquiry concerned with government decision-making.

As the TUC’s assistant general secretary Kate Bell has recently put it:

“The Covid pandemic impacted every single person in the UK, including millions of workers who put their lives on the line. The very least we all deserve is openness and transparency from those who took the decisions. The lessons we need to learn from this pandemic are too important for the government to play politics with. It must co-operate fully.”

My Lady, I turn to the list of issues.

We have made written submissions, and as you will have seen we have called for the list to descend into far more detail, and certainly for our interests we remain uncertain as to the extent to which the Inquiry is going to be considering adequately the extent to which core political decision-making on NPIs appropriately took account of and was influenced by the implementation and their effectiveness across the range of workplaces.

We take as just one example that of education. Non-pharmaceutical interventions in schools, including but not limited to partial school closures, were a core part of the government strategy. We have a lengthy corporate statement from the Department of Education and some expert evidence which touches on the issue, but education receives not a single mention in the list of issues other than in the context of modelling educational and mental health impacts.

Mr Keith King’s Counsel said this morning that of course there will be exploration of broad reasons for school closures, but detailed examination of the merits and operational impacts can only take place in the later module.

As to that, we make two points. First, if exploring broad reasons means really hearing from the government as to its rationale, but without the breadth of evidence to test it, then we would be concerned that that is insufficient including for Module 2.

Second, we also say it really underlines the need for more detail in the list of issues. Saying we’re going to examine the broad reasons does not set the Inquiry or core participants on a clear course.

As in our written submissions, we are concerned that the lack of clarity in relation to education is but one example of an uncertainty that arises across a range of sectors: the transport sector, the communications sector, the manufacturing sector, the construction sector, and the retail sector.

On the list of issues, we also support the submissions made by the Long Covid group and their advocacy in respect of their six framework questions, and as recently as March of this year the TUC published a joint report with Long Covid Support which examined the effects of long Covid in the working population.

I turn to the scope of the evidence and Rule 9 requests.

The picture as to the evidence gathering and the Rule 9 process is only really just emerging as we begin to see the first disclosed statements. As it appears to us, there is a significant focus on central government evidence. There is also some evidence from impact groups, as they have been described, which is obviously important and helpful.

Then there is evidence from other professional organisations from outside the government that had some involvement with responding to and consulting with the government on NPIs and implementing them, but we are concerned that this group of evidence is very small.

By way of example, and returning to the issue of education, we are uncertain as to which professional organisations involved in consulting with the government and implementing NPIs, other than the TUC, the Inquiry is seeking evidence from in Module 2, and as far as we understand the answer is none.

Similarly, the Department for Transport has given a witness statement describing its liaison with industry partners, but we are not aware that any of those industry partners, apart from the TUC affiliated unions, have been approached for evidence, and we suspect that the same point can be made across a range of sectors.

As in our written submissions, if the Inquiry is persuaded to seek further evidence as suggested, the TUC would welcome an opportunity to liaise with the Inquiry to seek to identify the appropriate organisations. The evidence is important, we say, so that Module 2 can go beyond noting government rationale as to NPIs and really have the breadth of evidence in order to be able to challenge it.

Finally, my Lady, it is important that I put on public record the TUC’s position as regards the funding position for its legal representation. At the outset of this Inquiry, you called for groups to work together so as to focus and limit the number of core participants. The TUC answered that call and is seeking to represent union interests across England, Scotland, Wales and Northern Ireland, and across a range of sectors, including healthcare, social care, education, transport, manufacturing, communications, retail and others.

So far it is seeking to do so as a core participant in all six of the ongoing modules in which core participant status has been granted.

The Inquiry has refused any funding for the TUC and so it is self-funding. The TUC has been able to commit £200,000 to its work on the Inquiry for the reminder of the year, of which £150,000 is available to fund its legal representation. That is approximately 20% of its annual budget that is available for ongoing projects. The spend is, therefore, a significant financial commitment, at least as compared with the available budget, which reflects the importance of the Inquiry to the 5.5 million members of the TUC’s affiliated unions.

Nonetheless, you will no doubt recognise, my Lady, that that is nowhere near sufficient to allow adequate legal representation. So it is that the TUC is proceeding with a single junior counsel and its engagement with the evidence is necessarily severely constrained. We consider that the Inquiry will be poorer for that limited engagement.

Funding was refused because the TUC is a substantial organisation, which is accepted, and you considered that there were no exceptional circumstances warranting funding. We consider that the breadth and importance of the TUC’s interests and the extent to which its involvement will be hampered without funding quite readily amounts to exceptional circumstances.

Notably, as it stands, the TUC is quite possibly the largest non-state representative core participant to the Inquiry but one of the smallest in terms of its resources for legal representation. That should be seen as a problem.

I get to this, my Lady: we would welcome any dialogue with the Inquiry that it’s willing to afford us which might involve these funding difficulties and which would allow us to give some semblance of proper representation across the range of sectors that the TUC is seeking to represent.

My Lady, those are my submissions.

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

I think Mr Dayle, please.

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

Mr Dayle: My Lady, I together with a counsel team of Ms Elaine Banton, Mr Ifeanyi Odogwu and Ms Una Morris, represent the federation of ethnic minority healthcare organisations, FEMHO, and we are led by Mr Leslie Thomas KC, and are instructed by the firm Saunders Law.

As you are aware, FEMHO is a large multidisciplinary consortium advocating on behalf of black, Asian and minority ethnic health and social care workers.

Like others before us, we wish to register our support for your recent ruling in the application by the Cabinet Office under section 29 of the Inquiries Act. We join others in agreement that the Inquiry and the Inquiry alone are best placed to determine what is and what is not relevant to your investigations, and as such what redactions are reasonable on disclosure.

We are grateful that the Inquiry alerted us to a contemplated section 19 application from the Cabinet Office, and for the update provided this morning by Mr Keith KC that this application will not be pursued at this time.

It bears saying, my Lady, that FEMHO will oppose any such application if it were to return at some later point.

From our vantage point, and not being privy to the particulars of these controversies as they unfold, we wish to emphasise an overarching principle that shapes this Inquiry. My Lady, that is the immense scope of your investigative powers under the Inquiries Act.

This principle is illustrated in the case law, and one example comes from the Leveson Inquiry, and is the case of Associated Newspapers Limited v Leveson from 2012, where the Administrative Court validated the Chairman’s jurisdiction to determine the terms under which witnesses could testify, more specifically in conditions of anonymity.

In their judgment, the Administrative Court pronounced:

“Above all, it is of the greatest importance that the Inquiry should be, and seen by the public to be, as thorough and balanced as is practically possible.


“The public interest in the Chairman being able to pursue the terms of reference as widely and deeply as he considers necessary is of the utmost importance.”

This decision of the Administrative Court confirms, my Lady, that you are entitled to shape the course of this Inquiry, and take the appropriate steps to ensure that your investigations are as robust and as fair as possible.

Part of your role as Chair includes protecting and upholding the duty of candour, which is also crucial to maintaining the Inquiry’s integrity. This duty, emanating from the Latin word “candor”, meaning purity or sincerity, denotes an obligation for public servants to act with honesty and transparency. In the context of this public inquiry, it refers to the compulsion of public bodies and public officials to be open and transparent about their actions, decisions and any errors or failures that may have occurred.

My Lady, your ruling on the Cabinet Office’s section 21 application also acknowledges the important link between openness and transparency and the right of core participants and the wider public to effective participation in this Inquiry.

The government’s initial response to the pandemic forms an important focal point of this Inquiry. There is a well-established public concern, as you astutely noted, regarding former Prime Minister Boris Johnson’s initial reaction to the emergence of Covid. Did the UK Government meet its systematic obligations during the pandemic? Should they have taken more positive and protective steps to safeguard lives? These questions are fundamental to our understanding of the government’s approach to the Covid-19 threat.

From information that is already in the public domain, it is clear that the attitude and curiosity of our leaders about the emergency of Covid-19 played a critical role in the early stages of the pandemic.

This was at a time when, quite literally, government decision-making was a matter of life and death. The scope of your investigation in Module 2, my Lady, ought necessarily to be wide and deep and you are entitled to pursue the lines of inquiry that will answer the questions of core participants and the public.

On the points of canvassing evidence, we ask the Inquiry to confirm whether the widest range of communication evidence from social media communication platforms has been requested from the Cabinet Office. This includes communication on less obvious media platforms such as Signal and Telegram. We note as well that, in some instances, the Inquiry’s Rule 9 questions to some senior public officials have been published in various press outlets and, as Ms Campbell pointed out earlier, on Twitter.

In light of this, we invite you, my Lady, to publish the complete set of Rule 9 requests so that there is a complete picture of areas of inquiry in your investigations.

FEMHO submits that the key questions underpinning Module 2 are, firstly, did central government perceive the pandemic as a national threat necessitating the invocation of a public emergency? If so, did this framework inform and shape its decision-making process? Areas of possible inquiry include the apparent suspension of the public sector equality duty, alongside what appears to have been a pattern of decisions not to report Covid-19 deaths under the Reporting of Injuries, Diseases and Dangerous Occurrence Regulations, or RIDDOR.

The legality of any such actions under conditions of a public emergency would be questionable without an official declaration of derogation under Article 15 of the ECHR. A potential infringement on legality emphasises the importance of thorough investigation.

Secondly, we submit that the role of societal factors, including government decisions, in perpetuating adverse racialised outcomes is a pressing area of enquiry for Module 2. In the previous preliminary hearings, structural racism has been recognised as an important lens through which to assess government decision-making.

FEMHO welcomes the identification of an expert on structural racism to guide the Inquiry in this complex terrain, and we note the names that have been mentioned by Mr Keith’s remarks this morning.

As set out in our written submissions, given the limited time between now and the start of evidential hearings, we consider it would be most time efficient if CPs were given sight of the draft instructions to these experts and the opportunity to make observations on the scope of those instructions instead of waiting for sight of the draft reports.

We also note Mr Keith’s observations regarding witness evidence and the Inquiry’s laser focus on high-level government decision-making. We welcome his observation that the Inquiry will be calling a wide range of witnesses, including from bereaved minority and marginalised groups. We invite the Inquiry to consider calling witnesses from FEMHO’s large multidisciplinary membership of health and social care workers precisely on this issue and in this module, because the impact of government decision-making on FEMHO’s members at the time those decisions were taken is particularly illustrative on the soundness of these decisions. It would also assist the Inquiry, we submit, in forming a view about the decisions that should reasonably have been taken in the circumstances.

This Inquiry should delve into how and why government decision-making, both at the central and local level, failed to adequately consider, anticipate or address the inequality that was exacerbated by the pandemic. It must scrutinise why the government failed to protect against the disproportionate deaths and poor health outcomes suffered by ethnic minority healthcare and social care workers and their wider communities.

FEMHO believes that it is only through confronting uncomfortable and inconvenient truths that we can hope to achieve real change and ensure that such failings are never repeated.

Turning now to matters of procedure, we welcome Mr Keith’s confirmation that our proposal for a comprehensive system of cross-module disclosure has been considered and that a system will be put in place to ensure that this is available during this module.

On another matter of procedure, FEMHO is concerned by the lack of express reference to questions pertaining to structural racism and racial inequalities in the provisional list of issues, or indeed the public sector equality duty.

In this regard, we support remarks made earlier this morning by Ms Maragh on behalf of the Bereaved Families for Justice. Without express reference, FEMHO considers that there is a real danger that opportunities to properly investigate the issue will be overlooked or missed. This is an issue of critical importance that raises unique questions and considerations and must, FEMHO submits, be considered in isolation rather than grouped alongside all the other heads of inequalities.

We also wish to highlight concerns about the potential timing implications for evidential hearings arising from witnesses, experts, Rule 9 requests, and the list of issues. There is a strong possibility that key disclosure, including witness statements, continuing into July may identify individuals not included in the provisional list due in June. We seek confirmation that June will not be the final opportunity for CPs to submit additional relevant names.

Furthermore, my Lady, we have previously offered comprehensive feedback on experts and the provisional list of issues, including specific observations on the draft expert reports of Professors Hale and Henderson. We await your indication on how our feedback has been incorporated as soon as possible.

My Lady, with significant disclosure yet to be released, there is a genuine risk that there may be insufficient time to fill any identified gaps. We support the submissions by Ms Heaven earlier this morning on behalf of the Bereaved Families for Justice Wales regarding Rule 9 requests. We suggest that the Inquiry provides full visibility of Rule 9 requests to CPs now, allowing for earlier identification of relevant documents not included in the requests. This will give the Inquiry adequate time to procure and consider any such documents, ensuring a comprehensive and thorough investigation.

In my penultimate point – and we can take this briefly – we wish to associate ourselves with the respectful and nuanced submissions that have been made in respect of the issue of your sitting with a panel, my Lady.

As you are aware, we raised this issue in our written submissions and we will not seek to rehearse these matters at this point.

So in closing, my Lady, FEMHO is strongly of the view that the public has a right to know the decisions that were made by government during the pandemic, the actions that were taken, and the errors that indeed might have occurred. We believe that only through this process can we learn, grow and ensure that we are better prepared for the next pandemic.

My Lady, we are grateful for your leadership in this Inquiry, and we stand ready to support your efforts in the pursuit of answers.

Unless there are any issues arising, my Lady, those would be our submissions at this time.

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

We’ll take a break now, and I shall return at 3.45, when I’m going to hear from Ms Marina Sergides – sorry, I hope I’ve pronounced it correctly – and then we will hear from Ms Henke, Ms Drysdale and Mr Chapman.

Thank you very much.

(3.28 pm)

(A short break)

(3.45 pm)

Lady Hallett: Right. Ms Sergides.

Submissions on Behalf of the Southall Black Sisters by Ms Sergides

Lady Hallett: I hope I pronounced your name correctly.

Ms Sergides: You have, my Lady.

Lady Hallett: Thank you.

Ms Sergides: My Lady, I represent Southall Black Sisters, led by Liz Davies KC, instructed by Public Interest Law Centre. I am grateful for the opportunity to make oral submissions given our previous indication that we would not do so.

I wish to raise two points in addition to our written submissions, and I will be brief.

The first relates to Rule 9 requests. We support the written submission made by the children’s rights organisations that the Home Secretary at the relevant time, Priti Patel, should be served with a Rule 9 request. Her and her department’s awareness of the potential implications of lockdown on domestic abuse, both in anticipation of the first lockdown and the lessons learned from the first lockdown for subsequent lockdowns, are relevant.

Furthermore, we submit that Rule 9 requests should also be served on units within the Home Office, namely the violent crime reduction unit and the unit on enforced marriages in particular. This is a matter we have raised in previous written submissions and it is clear that both units held information relating to domestic abuse against women and girls before and during the pandemic.

This is information that may have been essential to decisions mad relating to three key areas, namely identifying potential victims of domestic abuse, communicating information about potential victims of domestic abuse across government departments, and importantly, the decisions, if any, made in respect of the support services provided to survivors of domestic abuse while being unable to leave their homes.

It may transpire that these units were not in fact consulted at all in decisions relating to women and girls, and that itself will be relevant, but we will only know this if Rule 9 requests are made of them.

My second point relates to expert evidence. My Lady, in respect of the experts on inequality set out by Mr Keith King’s Counsel this morning, we welcome the proposed expert evidence from Professor James Nazroo, Tom Shakespeare, Professor Nick Watson and Clare Wenham. However, none of these experts are able to give evidence on violence towards women and girls, or the discrimination and inequality faced by them aside from the important issues relating to intersectionality. We therefore submit that consideration should be given to an expert who is able to address issues specifically relating to violence towards women and girls in addition to the discrimination faced by women, and in particular to ethnic and minority women.

In short, my Lady, expert evidence on inequalities faced by women and girls goes beyond health inequalities.

My Lady, you already have in writing our recommendations and suggestions on experts and I respectfully ask you give them further consideration.

My Lady, thank you for your time.

Lady Hallett: Thank you very much indeed.

Right, now Ms Henke King’s Counsel for the Welsh Government.

Submissions on Behalf of the Welsh Government by Ms Henke

Ms Henke: My Lady, I’m behind the pillar, I don’t think you have a direct line of sight, but I am here and I can see you on a screen.

Lady Hallett: Okay.

Ms Henke: My Lady, prynhawn da, good afternoon. These are the brief oral submissions on behalf of the Welsh Government.

My Lady, the Welsh Government reaffirms its commitment to this Inquiry. It intends to fulfil that commitment. The Welsh Government wants to reassure the Inquiry and the core participants that we wish to work collaboratively with the Inquiry providing the disclosure, the evidence and the information requested of us. We have heard what has been said by the Bereaved Families for Justice Cymru about our participation in Module 1. The Welsh Government wish to reassure the Inquiry and the families of the bereaved that we are working with the Inquiry and will continue to work with the Inquiry to provide such evidence as is required to enable there to be a full and comprehensive Inquiry.

My Lady, the Welsh Government agrees with the submission on behalf of the TUC that the Inquiry will be enriched by a broad range of perspectives from a broad range of witnesses. We support the inclusion of a broad range of perspectives across both Module 2 and Module 2B, the Welsh module.

The Welsh Government is grateful that the Inquiry intends to provide further detail about the relationship and interrelationship between Modules 2, 2A, 2B and 2C. The Welsh Government is conscious that at the moment the majority of the Welsh Government’s evidence on intergovernmental working is set out as part of Module 2B and we welcome the indication that there will be appropriate cross-module disclosure.

My Lady will know that the Welsh Government has not been party to any discussions that may have taken place between the Inquiry and the UK Government on the issue of collective responsibility. We wish to emphasise that non-disclosure on the grounds of collective responsibility is not something upon which the Welsh Government wish to make substantive submission, nor is it likely to be an issue that we will raise in this Inquiry.

The Welsh Government is grateful for the update provided by Counsel to the Inquiry on the release of information by the Cabinet Office relating to communication between the Chancellor of the Duchy of Lancaster and the devolved governments. We look forward to seeing such material as the Chair considers appropriate to share with us and the other core participants.

My Lady, in relation to issues of disclosure of WhatsApp messages, diaries and the like, the Welsh Government intends to fulfil all such requests made of it by this Inquiry without any prior redaction by us. We understand the duty of candour and we intend to be transparent.

My Lady, is there any issue with which I can assist the Inquiry today?

Lady Hallett: No, thank you very much indeed, but I think I will pursue the point about having someone speak who is here when I can’t see them. It’s like having a disembodied voice …

So thank you very much indeed.

Ms Henke: My Lady, I’m grateful, thank you.

Lady Hallett: Right, and the next, I hope, Ms Drysdale, you’re not behind a pillar, are you?

Ms Drysdale: Good afternoon, my Lady.

Submissions on Behalf of Scottish Ministers by Ms Drysdale

Ms Drysdale: Can you see and hear me, my Lady?

Lady Hallett: I can, thank you very much.

Ms Drysdale: My Lady, I appear on behalf of the Scottish Government with my junior Kenneth McGuire.

I have six very brief points to make: firstly, on acknowledgement of loss; secondly, the commitment by the Scottish Government to the Inquiry; thirdly, co-operation and engagement by the Scottish Government with the Inquiry; fourthly, evidence provided by the Scottish Government to date; fifthly, the relationship between the modules; and sixthly, assistance by the Scottish Government.

So, my Lady, turning to the first of my points, the Scottish Government wish to acknowledge the scale of the loss and suffering of those in Scotland and the rest of the United Kingdom during the pandemic. In particular, they welcome the update on the listening exercise, Every Story Matters, and on commemoration by Mr Keith KC.

The Scottish Government recognise the central importance of the bereaved and all those affected by the pandemic to the Inquiry process, the importance of ensuring that their stories are heard and the importance that they receive answers to their questions in relation to the pandemic.

In this context, my Lady, this brings me to my second point, that the Scottish Government wish to stress the seriousness of their commitment to full co-operation with the Inquiry.

Given that the Inquiry is to take a trauma-informed approach, the Scottish Government wishes to emphasise its intention to work collaboratively with the Inquiry team.

We are grateful to Counsel to the Inquiry for establishing good communication with ourselves and to the cordial, respectful and prompt communication of the Solicitor to the Inquiry for Module 2 with the legal team for the Scottish Government.

Turning to my third point, my Lady, the co-operation and engagement of the Scottish Government with the Inquiry, the Scottish Government understands the importance of disclosure to the Inquiry and its full engagement with this aspect of the Inquiry. It has been co-operating fully with the process of disclosure and extensive documentation has been produced, over 9,000 documents already having been disclosed by the Scottish Government.

Turning to the issue of further evidence provided by the Scottish Government, my Lady, the Scottish Government welcomes and supports the approach of the Inquiry to obtaining evidence from witnesses. All requests for statements under Rule 9 have been met. Eight corporate statements have been produced and one personal statement, and the Scottish Government has respected all deadlines and complied with all requests to provide documentation where it holds that, and it will continue to do so.

Turning to the issue of the relationship between the modules, the Scottish Government notes that the Welsh Government seek clarification on the relationship and interrelationship between the different Modules 2, 2A, 2B and 2C, and the Scottish Government welcomes the update by Mr Keith KC on how cross-module disclosure will be made and it would also appreciate further clarification in due course of the precise parameters of Module 2 and how that will interact with Module 2A.

Finally, my Lady, on the issue of assistance to the Inquiry by the Scottish Government, the Scottish Government wishes to emphasise that it will assist the Inquiry to ensure that investigations are conducted as comprehensively as possible in the time available. It will assist the Inquiry in its aim of identifying recommendations to support appropriate and effective decision-making in the event of a future pandemic, and to answer questions for the bereaved and

for all those affected by the pandemic.

My Lady, these are the submissions for the

Scottish Government.

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

Right, I think the last person to speak – unless

Mr Keith wishes to say anything by way of reply – is

Mr Chapman.

Not the most popular brief today, Mr Chapman,

I think, acting for the Cabinet Office.

Submissions on Behalf of the Association of Directors of the Cabinet Office by Mr Chapman

Mr Chapman: My Lady, it’s always my pleasure to represent the Cabinet Office.

For the purposes of today’s hearing, I intend to focus on the following five areas: the provision of WhatsApp messages; the provision of Google Spaces messages; provision of records of calls with the devolved administrations; Cabinet collective responsibility; and matters relating to the former Prime Minister Boris Johnson.

So if I can take those in turn, starting with WhatsApp messages.

As you know, my Lady, the Cabinet Office has been supporting a large number of witnesses to whom the Inquiry has made requests for information. To date, it has provided 21 individual witness statements in Module 2, with a substantial body of accompanying disclosure.

The Inquiry’s Rule 9 requests for evidence to witnesses in Module 2 have included a request for disclosure of WhatsApp and other messages about the UK Government’s response to Covid-19. The Cabinet Office has been assisting the witnesses it is supporting to provide all such messages.

Despite extensive dialogue and all best endeavours to reach agreement, there has emerged a regrettable but genuine difference in legal opinion between the Inquiry and the Cabinet Office as to whether it’s necessary to provide messages which are unambiguously irrelevant to the Inquiry’s work. For today’s purposes, it would be inappropriate for me to do anything more than acknowledge that difference and to note that it will be resolved elsewhere.

In the meantime, and notwithstanding that legal difference, the Cabinet Office continues to work extremely hard and at pace to assist witnesses to disclose all WhatsApp messages which are not unambiguously irrelevant to the Inquiry’s work.

Well over 1,000 pages of messages have been provided to the Inquiry, with more to follow shortly.

The Cabinet Office will continue to keep the Inquiry’s legal team updated as to its progress with this work, and it will provide the Inquiry with a further detailed update addressing the position on a witness by witness basis next week.

On Google Spaces, my Lady, in January 2023 the Cabinet Office identified the use of Google Spaces as a method of communication within some Cabinet Office business units. The Cabinet Office has identified a total of 49 Google Space groups in which at least one Cabinet Office Module 2 witness actively participated.

As has been requested, the Cabinet Office has provided the Inquiry with details of the participants and date ranges for each of these groups and, at the Inquiry’s request, is prioritising its review of certain groups according to an agreed timetable.

Turning to calls with devolved administrations.

At the end of last week the Cabinet Office provided the records sought by the Inquiry in an unredacted format. As DLUHC – the Department for Levelling Up, Housing and Communities – is the responsible department now for these documents and related issues, the Inquiry has agreed to direct any follow-up questions to DLUHC rather than the Cabinet Office.

Can I turn to the issue of Cabinet collective responsibility.

In establishing this Inquiry, the government recognised the unprecedented and wholly exceptional circumstances of the pandemic and the importance of examining as rigorously as possible the actions the state took in response in order to learn all possible lessons for the future.

The government is not currently withholding any information from the Inquiry on the basis of Cabinet collective responsibility and, given the purpose of this Inquiry, the government does not expect to seek any redactions to relevant information due to be disclosed to core participants.

Lady Hallett: Sorry, can I just check: does that mean at any stage of the Inquiry?

Mr Chapman: Throughout the life of the Inquiry, yes.

Lady Hallett: Thank you.

Mr Chapman: It has regularly sought the Cabinet Office’s assistance in obtaining material from individual witnesses, and the Cabinet Office has throughout sought to facilitate that process.

It has recently obtained, very quickly reviewed and now disclosed to the Inquiry Boris Johnson’s notebooks, following a review for national security sensitivities and unambiguously irrelevant material.

The Cabinet Office is of course aware that Mr Johnson has recently indicated a willingness to provide information directly to the Inquiry.

In relation to your team’s suggestion that Mr Johnson’s notebooks should be returned to him in full, the Cabinet Office is considering its position.

It’s particularly cognisant of potential national security issues and, in addition, it reserves its position on whether unambiguously irrelevant material should be provided to the Inquiry by any person in advance of the resolution of the judicial review. It recognises the urgency, and will of course keep the Inquiry informed.

The Cabinet Office is also exploring options to support Mr Johnson in gaining access to the material on his old phone, and will contact him and his legal team as a matter of urgency to agree suitable arrangements. The Inquiry will naturally be kept informed of progress.

So, my Lady, those are the issues upon which I propose to address you.

Lady Hallett: Could I ask a couple of questions, Mr Chapman, and if you can’t answer them, please say so.

Mr Chapman: Yes.

Lady Hallett: Your penultimate point: so the Cabinet Office is in possession of Mr Johnson’s notebooks, but because of the point that’s going to judicial review, even though Mr Johnson himself says he would reveal them to the Inquiry without redaction, the Cabinet Office is going to apply redactions to somebody else’s material? Have I got that right?

Mr Chapman: My Lady, the position is that the Cabinet Office is working out its position and it will keep the Inquiry informed.

Lady Hallett: I’m sure you’ll alert them to the fact that, as everyone’s pointed out today, the pressures are growing on all of us.

Can I ask what the position is in relation to the old phone? As I understand it, Mr Johnson could have just handed us the old phone, but neither the Inquiry nor he has the ability to access the data, and so Cabinet Office very kindly are stepping in – and of course they have the national security issues to consider, which I totally understand – but do I take it from what you said in the penultimate point, is there going to be any question of redacting whatever we find on the old phone, until the Cabinet Office has resolved its position?

Mr Chapman: My Lady, it’s the same answer, that the Cabinet Office – these issues have very recently been brought to the Cabinet Office’s attention and it wants to consider its position, but it recognises the urgency in doing so.

Lady Hallett: Right.

Can you just explain a little more, Mr Chapman, about the transfer of responsibility to – I can never pronounce these awful acronyms – DLUHC? What has gone to DLUHC?

Mr Chapman: Under a machinery of government change, earlier or in fact last month, responsibility for devolved administration issues and issues relating to the union of the United Kingdom have been transferred from the Cabinet Office to DLUHC, and with that ownership of the documents, and it’s for that reason that Cabinet Office sought to facilitate and indeed itself disclosed the documents that had been sought by the Inquiry in relation to the calls with the devolved administrations.

As indicated, the Inquiry or your team will take any further issues forward with DLUHC. They’re now the owner within government of the documents and related issues.

Lady Hallett: And this machinery of government change took place, what, this year?

Mr Chapman: There have been two machinery of government changes during the relevant period, the most recent one being last month.

Lady Hallett: Well, at some stage I may wish to go into whether that’s caused any delay or the purpose of it. Somebody will know if they’ve ever read anything I’ve written by way of judgments or rulings. I do sometimes object to change for change’s sake, or for other reasons.

Okay, thank you, Mr Chapman, those are all the questions I will ask at this stage.

Please do convey the message – I know you will – that we really are all of us under pressure and the more delay there is, the greater the pressure on everybody, and that includes not only the Inquiry team and me, but all the representatives for the core participants and those they represent.

Mr Chapman: My Lady, that message is well understood by those instructing me. The Cabinet Office is itself extremely eager to do everything it can to ensure that the timetable does not slip.

Lady Hallett: Thank you very much, Mr Chapman.

Mr Keith.

Reply Statement by Lead Counsel to the Inquiry

Mr Keith: My Lady, may I briefly attempt to sweep up those issues which, in our submission, require to be responded to and can usefully be dealt with straightaway.

In relation to the application for the Inquiry to disclose the Rule 9 requests that it has made to the myriad number of recipients, I repeat the submissions that I made earlier, and I would simply observe this in addition: in addition to there being no basis in law or past practice to the disclosure of the Rule 9 requests, it would simply serve no purpose at all in the particular context of this module, because of course the core participants are beginning to receive the documents generated by those very same Rule 9 requests already.

The concern expressed by the core participants, which we readily understand, is that there is fear on their part that we are not sufficiently keeping the corporate feet of the material providers to the fire in relation to their response to those Rule 9 requests, that they are not giving us what we seek, and that they’re not sufficiently and appropriately responding.

As I’ve said earlier in my oral submissions, confidence can be placed in the Inquiry because it is absolutely obvious that we are keeping their corporate feet to the fire. All the issues that I’ve brought to your attention this morning are all concerned with the number of ways in which we have ensured that we obtain what we wish from the material providers, and so there really is no practical purpose to be gained in disclosing the original Rule 9s now from some time ago.

In relation to the submissions from Bereaved Families for Justice Cymru, an issue was raised about whether or not it would be possible to save annotations on the electronic transcription system. The answer to that is: yes, it will be possible, it’s just not possible today, but it will be possible for the full hearings.

Submissions were advanced as to the extent to which WhatsApps have been requested of the Welsh Government Rule 9 recipients. We are concerned of course today with Module 2, and in relation to Module 2 we have sought WhatsApps relating to Mr Drakeford, who is the only minister in relation to whom we’ve issued a Rule 9 in Module 2. But of course there is much more extensive Welsh evidence expected for the purposes of Module 2B.

My Lady, you were addressed by Mr Metzer, on behalf of the Long Covid groups, in relation to the extent to which long Covid would be an issue in Module 2. My Lady, he expressed the serious disappointment of his clients and indeed his own disappointment that Module 2 would not be looking at long Covid.

My Lady, I can absolutely assure him we are looking at long Covid in the context of Module 2. Long Covid is an injury, a serious condition, even a serious morbidity which is the result of having had Covid.

Module 2 is looking at the extent to which the decision-makers bore that responsibility in mind, and of course witnesses will be asked to what extent they considered long Covid and, if they did not consider it, why they did not.

Indeed, the questions that Mr Metzer posed are paradigm examples of the sorts of questions which will inevitably be put to the witnesses in Module 2. But the medical and epidemiological examination of long Covid is not something for Module 2. That is something which will deserve and receive its own scrutiny in the context of Module 3 and healthcare.

My Lady, in relation to the submissions concerning the capturing of the testimony of children and young people for the purposes of Every Story Matters, my Lady, without piercing the veil of communications between yourself and your team overmuch, I can say that I know that you have directed that to be rapidly looked at, to be considered straightaway, and you have repeatedly expressed your wish that such testimony can be, to use the phrase, captured and brought to the attention of the Inquiry as you proceed through the modules. So that is very much a matter in hand.

My Lady, in relation to the submissions from FEMHO, firstly a request was made for disclosure of the draft instructions to the experts. My Lady, the core participants have ample opportunity to comment on the first drafts of the actual expert reports. So, to the extents that the drafts may not cover areas or issues that they would wish to see covered, they are given a full opportunity at that stage to ask the Inquiry team to go back to the experts to cover those additional areas, so little purpose would be gained in disclosing the original draft instructions.

In relation to Southall Black Sisters and the submissions relating to the additional Rule 9s, we will consider what has been said. There is obviously an issue concerning the extent to which we are able, in the confines of Module 2, to look at domestic abuse and the extent to which the government bore that in mind when making relevant decisions on lockdowns, but that is something which I think we will need to enquire into further.

My Lady, finally in relation to Mr Chapman’s submissions, I’m afraid, in our respectful submission, his position will not do.

We are under very severe constraints of time, as you have observed, and we are now of course actively engaged in litigation against the Cabinet Office in the High Court.

They have had ample time to make their position plain, and I would invite you to order that by the end of this week, given the amount of correspondence which has gone to and fro already, the Cabinet Office formally indicates what its position is in relation to unrestricted – that’s to say unredacted – access to the notebooks belonging to Mr Johnson which it currently possesses and which it intends to return to him; secondly, what its position is in relation to the return to Mr Johnson of his dairies, which Mr Johnson has indicated we may of course examine on an unredacted basis; and, thirdly, by the end of the week, what their position is in relation to our non-national security unrestricted unredacted access to the phone.

I’m afraid experience has shown that the Cabinet Office’s position on all these matters is not altogether clear, and we would be very grateful for a formal direction to that effect.

In relation to the WhatsApps – that is to say the WhatsApps relating to the many other witnesses who are looked after by the Cabinet Office and who have received Rule 9 requests – we would be grateful for a schedule, by the end of this week, of all the WhatsApp groups and threads relating to the witnesses looked after by the Cabinet Office, in relation to whom they have received Rule 9 requests now some time ago.

Lady Hallett: Before I make that order, Mr Chapman, I’ll give you an opportunity to make any submissions. There were four matters there, I don’t know if you had a chance to …

Mr Chapman: No submissions to make. Thank you.

Lady Hallett: Very well.

Mr Keith, I make the directions that you seek, that I want those matters by the end of the week from the Cabinet Office.

Mr Keith: Thank you.

Lady Hallett: Anything further?

Mr Keith: No, thank you, my Lady.

Lady Hallett: Very well, that brings us to the end of today’s proceedings.

I’m very grateful to everybody who’s attended here in person and followed our proceedings, and also those who have been following online. I hope that we managed to allay some concerns, although I’m very conscious that there are concerns that remain.

I repeat an undertaking I have given before, but I’ll do my very best to address those concerns and where possible resolve any issues. I can’t always promise to do what everybody wants me to do, but I’ll do my very best within the constraints upon me.

So thank you all very much. The next time I think

the Inquiry team meets core participants will be when we

start hearing evidence next week.

Thank you all.

(4.16 pm)

(The hearing adjourned)