Transcript of Module 2A Preliminary Hearing on 1 November 2022

(10.00 am)

Lady Hallett: Good morning.

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

This is going to focus on the Scottish Government’s core political and administrative decision-making in its response to the Covid-19 pandemic between early January 2020 and April 2022.

I’ll leave it to Mr Jamie Dawson King’s Counsel, lead counsel to the Inquiry for this module, to explain the background to the UK Inquiry, the module system we have adopted and how this module, 2A, and the Inquiry generally will work with the Scottish Inquiry.

We have to work together so that the Scottish people know to whom they need to turn for issues they wish to have dealt with, so that we minimise duplication of effort and resources, and of course so that we minimise the burden on those to whom we sent requests for documents and information.

We have already taken steps to arrange a meeting between me and the new Chair of the Scottish Inquiry, Lord Brailsford, and I look forward to working closely with him and his team as they refresh the work of the Scottish Inquiry.

So I’ll now turn to Mr Dawson, please, to outline what we’ll be doing today and the background as I explained. Mr Dawson.

Statement by Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Thank you very much, my Lady.

I am Jamie Dawson KC, and I am the Scottish senior counsel with responsibility for the preparation and delivery of matters falling within the ambit of Module 2A.

I appear at this preliminary hearing along with my learned friends, Usman Tariq, also of the Scottish Bar, and Stephanie Painter and Bethany Condron, of the English Bar, who are, with me, all part of the Module 2A team, the focus of which is and will be on Scotland.

It is anticipated that as Module 2A will look at political decision-making relating to Scotland, predominantly of the Scottish Government, and as this is the first of the module’s public hearings, there will be a number of people who have an interest in these proceedings who know little about the Inquiry or who may have had little contact or interaction with it.

Similarly, there will be others whose interests have been greater and who may have, for example, been involved with or even attended the preliminary hearings in Modules 1 and/or 2.

This presentation attempts to avoid unnecessary repetition, but also to provide what is hoped will be useful information about the function and aims of the UK Inquiry for those who have had limited information about it to this point.

There are a number of purposes to this preliminary hearing. First, I will set out the background to the UK Covid-19 Inquiry, how it has come about, its aims and objectives and the scope of this module.

Secondly, I will outline the nature of the Inquiry’s work so far.

Thirdly, I will address the nature of this Inquiry’s relationship and interaction with the Scottish Covid-19 Inquiry.

Fourthly, there will be an opportunity for those bodies which have been designated as core participants for this module, if they wish, to make submissions.

In order to cover the areas which fall within my remit, I intend to address the following ten matters in my presentation.

With regard to the background to the Inquiry, I attend to address the commencement of the Inquiry, followed by the impact of the Covid-19 pandemic in Scotland, and thirdly an outline of the scope for Module 2A and our current plans beyond.

With regard to the work of the Inquiry so far, I intend to make a submission about the Listening Exercise, the designation of core participants, evidence requests, disclosure to core participants, and the instruction of expert witnesses.

I will then address your Ladyship on the subject of co-operation with the Scottish Covid-19 Inquiry before concluding and giving some information about future hearing dates.

Before turning to the main body of my presentation, may I commence by setting out the practical arrangements for today’s hearing. These proceedings are being recorded and live streamed to other locations. This has certain benefits; it allows as many members of the public and representatives of organisations, including core participants, as possible to follow the proceedings and to gain an understanding of the module and our proposed approach.

Given the possibility that in hearings like this matters may be mentioned of a potentially sensitive nature, the broadcasting of the hearing will be conducted with a short delay. The feed can therefore be paused if anything unexpected is aired which should not be. We do not expect any such matters to arise over the course of today, but I mention this feature so that those who are following proceedings understand the reasons for any short delay if for any reason that did need to happen.

Let me then turn to the complicated question of representation. Present today, whether in person or remotely, excluding myself and the Inquiry legal counsel and solicitor team here, are counsel and solicitor teams representing the seven core participants in Module 2A. All are therefore legally represented. I will turn to the identity of the core participants and the meaning of that status in due course, but for now I am going to introduce the representatives who are in attendance either here or remotely, and to ask each in turn to say good morning to you, my Lady, so that they appear in the feed and so that you know who they are.

First of all, in the room is Claire Mitchell King’s Counsel, who is instructed on behalf of Scottish Covid Bereaved.

Ms Mitchell: Good morning.

Lady Hallett: Secondly, Samuel Jacobs for the TUC, also in the room.

Mr Jacobs: Good morning.

Lady Hallett: Thirdly, Sarah Winfield, representing the National Police Chiefs’ Council.

And the remaining representatives are attending remotely. First of all, on behalf of the NHS National Services Scotland, James McConnell, advocate.

Mr McConnell: Good morning.

Mr Dawson: Secondly, Geoffrey Mitchell KC for the Scottish Ministers.

Mr Mitchell: Good morning, my Lady.

Mr Dawson: Kirstyn Burke for Scottish Care.


Mr Dawson: The first technological hitch.

Lady Hallett: Not muted, are you?


Lady Hallett: Perhaps we will come back to –

Mr Dawson: Indeed.

Finally, on behalf of Public Health Scotland, Gordon Balfour, advocate.

Mr Balfour: Good morning, my Lady.

Lady Hallett: Good morning.

Mr Dawson: That one worked.

So, if I may then turn to the main body of my submission, with those introductions out of the way.

As regards the background to the Inquiry, I would like to set out some information for those who are listening about the commencement of this Inquiry.

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

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

In the written appointment letter, the Prime Minister confirmed that he would be consulting with ministers from the devolved administrations. Insofar as relevant to Module 2A, such consultation is required by section 27 of the Inquiries Act 2005 to enable the inclusion in the terms of reference of an Inquiry, for which a United Kingdom minister including the Prime Minister is responsible, of anything that would require the Inquiry to determine facts wholly or primarily concerned with a Scottish matter.

A Scottish matter is a matter which relates to Scotland and which is not a matter reserved to the competence of the UK Government. Thus, as the Prime Minister wished devolved matters to be included in the remit of this Inquiry, it was necessary for those steps to be taken.

Draft terms of reference were drawn up making clear that the Inquiry would consider and report on the UK state’s preparations for and response to the pandemic. That draft made clear that the Inquiry in contemplation would consider reserved and devolved matters relating to all four nations, including Scotland.

On 10 January 2022 your Ladyship wrote to the Prime Minister recommending certain amendments to ensure greater clarity in the Inquiry’s remit and to enable it to be conducted at an appropriate pace. You also sought an express mandate to publish interim reports, so as to ensure that any urgent recommendations could be published and considered in a timely manner. The need to draw conclusions about the handling of the pandemic at a point in time when they are still relevant and not too far removed from the events in question was and continues to be an important theme, to which I will return.

In addition, your Ladyship expressed the view that the Inquiry would gain greater public confidence if it was open to the accounts that many people, including those who have been bereaved, would wish to give.

Therefore, you suggested allowing explicit acknowledgement of the need to hear about people’s experiences and that our remit should consider any disparities in the impact of the pandemic.

On 4 February 2022 the Prime Minister responded accepting, with three caveats and a small number of clarificatory textual refinements, the detailed changes that had been proposed.

On 10 March 2022, having consulted with ministers from the devolved administrations, the Prime Minister wrote to you to inform you of certain further changes to the draft terms of reference which had been made in response to comments from the devolved administrations. The same day the Inquiry’s draft terms of reference were published.

On 11 March 2022 your Ladyship launched a public consultation process on the Inquiry’s draft terms of reference. The consultation on the draft terms of reference and the possibility of having an end date was open to everyone by various means.

Your Ladyship consulted widely across all four nations, visiting Edinburgh on 24 March and speaking in particular to a number of bereaved families. In parallel the Inquiry team met with representatives of more than 150 organisations, covering themes such as equality and diversity, healthcare, business and education and young people, among others. These included events which were held with organisations with an interest in these areas in Scotland.

In total, the Inquiry received over 20,000 responses to the consultation. An independent research consultancy was commissioned to analyse the responses and produce a comprehensive independent report on respondents’ views.

In light of the views expressed, your Ladyship recommended a number of significant changes to the draft terms of reference on 12 May of this year. In his response, on 28 June, the Prime Minister accepted your proposed changes in full. The set-up date of the Inquiry was confirmed to be 28 June.

On 21 July the Inquiry was formally opened. Your Ladyship announced the decision to conduct the Inquiry in modules, which would be announced and opened in sequence. Those wishing to take a formal role in the Inquiry were invited to become core participants within the meaning of Rule 5 to The Inquiry Rules 2006 for each module, rather than throughout the Inquiry as a whole.

Turning then, my Lady, having set out that background, to the impact of the Covid-19 pandemic in Scotland.

On 1 March 2020 the first positive case of Covid-19 was confirmed in Scotland. On 11 March the World Health Organisation declared Covid to be the first coronavirus pandemic. It was also the same date on which the first case of community transmission in Scotland unrelated to contact or travel was identified. On 13 March the first death of a Covid-19 patient was confirmed in Scotland.

The First Minister of Scotland, Nicola Sturgeon, said in her address to the nation on 20 March 2020 that Scots were facing “the biggest challenge of our lifetimes” in the fight against Covid-19. On 23 March she stated:

“Let me be blunt, the stringent restrictions on our normal day to day lives that I am about to set out are difficult and they are unprecedented. They amount effectively to what has been described as a lockdown.”

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

The NHS in Scotland was put on an emergency footing with non-urgent planned care being postponed.

The pandemic resulted in the deepest and fastest economic contraction on record in Scotland. Almost everyone was forced to work or to be educated from home. Many were furloughed or lost their jobs.

Difficult decisions were made in the Scottish Government’s response to the pandemic, often requiring to balance a number of competing considerations. The need to ensure that there were sufficient hospital beds available for Covid-19 patients led to the rapid discharge of untested patients from hospitals into care homes in the early stages of the pandemic. By mid-2020 it was reported that care home residents accounted for 50% of all Covid-19-related deaths in Scotland, which was the highest in the UK at the time.

A report by the University of Stirling published in August 2020 stated that there was a higher proportion of deaths in Scottish care homes linked to Covid-19 and also a higher number of infections as compared with other parts of the UK.

As the pandemic progressed, Covid-19 policies in Scotland began to diverge with those elsewhere in the United Kingdom. On 10 May 2020 then Prime Minister Boris Johnson unveiled an exit strategy and an easing of the lockdown rules in England. The First Minister, Nicola Sturgeon, asked the UK Government not to promote their “Stay Alert” advertising campaign in Scotland. On 11 May she asked Scotland to “stick with lockdown … a bit longer – so that we can consolidate our progress, not jeopardise it.”

Scotland continued with the “Stay at Home” slogan and restrictions remained in place. The divergence in Covid-19 policies between the Scottish Government and the UK Government continued throughout the pandemic.

The months and years that followed saw death and illness on an unprecedented scale in modern times. At the peak of the outbreak, in spring 2020, there were more than 1,500 Covid patients in Scotland, with more than 200 being treated in intensive care. Numbers reduced over the summer of 2020 but started to rise steadily again in the autumn.

In January 2021 the number of patients with Covid-19 in hospital in Scotland went above 2,000. During the Omicron surge in cases in early 2022, the total number of patients with Covid-19 surpassed the 2021 peak. However, the numbers being treated in intensive care were lower than they were earlier in the pandemic.

As of 16 October of this year, there have been a total of 15,869 deaths registered in Scotland where Covid-19 was mentioned on the death certificate, according to the National Records of Scotland.

The impact on Scotland has been profound. Beyond the individual tragedy of each and every death, the pandemic has placed extraordinary levels of strain on Scotland’s health, care, financial and educational systems, as well as on jobs and businesses. Every life has been affected. No individual, community or business has been untouched, and for many that has meant real and possibly long-lasting hardship. The pandemic has affected the health and well-being of vast numbers of people, particularly vulnerable groups, including people with disabilities, the clinically vulnerable, the mentally ill, ethnic minority groups, older people, children and those living in deprived areas.

It has been claimed that existing inequalities have been widened and exacerbated. The pandemic has led to financial and economic turmoil. It has disrupted economies and education systems and put unprecedented pressure on the NHS in Scotland. The impact on the NHS, its operations, its waiting lists and elective care has been immense. Jobs and businesses have been destroyed and livelihoods taken away. Children have missed out on schooling. The disease has caused widespread and long-term physical and mental illness, grief and untold misery. Its impact will be felt in Scotland for decades to come.

The breadth and depth of the impact of the Covid-19 pandemic in Scotland is clear. This message certainly was heard loudly and clearly during the Inquiry’s consultation process. It forms the backdrop to the Inquiry’s proposals for the examination of the handling of the pandemic in Scotland.

Against that backdrop, it is part of the duty of this Inquiry to get to the truth of what happened in Scotland and why, to examine and analyse the evidence about what decision-making took place, what its justification was, and what its effects were, to expose those responsible to scrutiny to and uncover wrong decisions and any significant errors of judgement, and to do what we can to ensure that lessons may be properly learnt in the interests of the Scottish public.

Those in Scotland who have been bereaved and others who have suffered or whose lives have been otherwise adversely affected are of course entitled to expect that that duty will be fulfilled. It will be.

Moving then, my Lady, on to the detail of the scope of Module 2A, if I might first of all say something about where Module 2A sits within the overall structure of the Inquiry, about which you have already heard a number of submissions at previous preliminary hearings.

I intend to outline in broad terms where Module 2A sits within the overall structure of the Inquiry’s modular system. This is intended to allow the detail of what is covered within Module 2A to be understood in the context of what will come before and after it. Greater detail on other modules and the modular structure of the Inquiry as a whole can be found in the presentations made in Modules 1 and 2, the transcripts of which are available on the Inquiry’s website.

Module 1 was opened on 21 July 2022 and a document outlining its provisional scope was published the same day. It will consider the UK’s preparedness for the pandemic. The Inquiry also published a core participant protocol, a protocol for the transfer and handling of documents, and a costs protocol, at around that time.

The Module 2 provisional outline of scope was published on 31 August 2022. It will consider and make recommendations about the UK’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 until Covid-19 restrictions were lifted in February 2022.

It 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 between early January and late March 2020, when the first national lockdown was imposed.

As decisions were made at UK Government level which had a direct or indirect impact on the management of the pandemic in Scotland, elements of the material covered in that module will be of relevance to the evidence led in Module 2A.

As I have covered already, this Inquiry is obliged by its terms of reference to cover both reserved and devolved matters in respect of Scotland. Therefore, having considered the picture from a UK-wide and also English perspective in Module 2, Module 2A will address the analogous core political decisions made predominantly by the Scottish Government acting within its devolved competence. The same will be true of the devolved administrations in Wales and Northern Ireland in Modules 2B and 2C respectively.

The provisional outlines of scope for each of Modules 2A, 2B and 2C were published on 31 August of this year, when each module was formally opened. On account of the fact that an inquiry has been established in Scotland to look at certain matters within the devolved competence of the Scottish Parliament and Government, this inquiry’s intention, and indeed its obligation under its terms of reference in relation to Scottish matters, is to seek to minimise duplication of investigation, evidence gathering and reporting with the Scottish Inquiry. I will return to this later.

To facilitate access for and engagement by the Scottish public and the Module 2A core participants, the public hearings in Module 2A will take place in Scotland.

Module 3 will come next and will examine the impact of Covid and of the governmental and public responses to it on healthcare systems generally across the UK. Later modules, details of which will be published in the coming months, will address very broadly what we are calling “system and impact issues” across the UK. The system modules will address vaccines, the care sector, Government procurement and PPE, testing, tracing, Government financial initiatives and the effect on business. The impact modules will look at the role of health inequalities in the effect of the pandemic and the impact of Covid-19 on the education and business sectors, on children and young persons, and on public services and other public sectors.

Neither the provisional scope nor the order of the modules has been finally determined. In later modules the Inquiry will address remaining Scottish matters. It will also return to Welsh and Northern Irish matters as appropriate. The precise scope of these modules and the extent to which they will touch upon Scottish experience of the pandemic will be published in due course as the modules are launched. It is intended that consideration will be given to work done by the Scottish Inquiry in reaching detailed decisions in that regard.

Module 2A itself is primarily concerned with the Scottish Government’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 and April 2022. Its scope is necessarily provisional. Although it introduces a wide range of topics, it is neither practical nor advisable to identify at this stage all the issues that will be addressed at the Module 2A oral hearings, let alone the questions.

Much will depend on the evidence and materials obtained under the documentary discovery process which has and is being designed, of course, to obtain documentation from which the issues can be further distilled.

The Inquiry team believes that the provisional scope provides a proper framework for this initial governmental module and provides a sufficient indication for persons and organisations who have relevant information and evidence to contribute, as well as core participants to be able to commence their preparations.

In order to provide a basis for the Inquiry’s initial examination of government, which is fair and consistent amongst the four nations, this framework approach has been adopted. It is important to point out that the intention of the Inquiry is to analyse and report on the differing ways that core political decision-making took place in the four nations of the UK. In order to ensure that the report deals with matters consistently throughout the four nations of the UK, it is necessary that there is a consistent framework amongst the four nations and the four parts of this module.

There will be room, however, for issues of particular concern or interest within that framework to be examined in greater detail within any sub-module where it is considered appropriate in the public interest of any one of the four nations.

The issues will be further developed once the majority of the responses to requests for documentary evidence have been received. If there are broad matters or areas which the core participants would additionally wish the Inquiry to consider as part of this core political and administrative framework, these will be considered for inclusion.

The provisional scope of Module 2A is as follows: the module will look at and make recommendations about the Scottish Government’s core political and administrative decision-making in response to the Covid-19 pandemic between early January 2020 and April 2022, when the then remaining Covid-19 restrictions were lifted in Scotland. It will examine the decision-making of key groups and individuals within the Scottish Government, including the First Minister and other Scottish Ministers, in particular between early January and late March 2020, when the first national lockdown was imposed. More detailed consideration of a number of key areas and the impact of the pandemic on those areas in Scotland will be undertaken later in the Inquiry.

Module 2A will examine the structure of the Scottish Government and the key bodies within it in Scotland’s response to the pandemic and their relationships and communications with the UK Government, other devolved administrations and local authorities within Scotland. So the module will examine the structures within which devolved decision-making about issues relating to the pandemic took place. This will include the relative responsibilities of the Scottish Government and the responsibilities of the UK Government. Similarly, the relative responsibilities of Scottish Government and local authorities will be considered, of particular relevance when the five-tier Covid measures system was introduced.

The outline scope continues.

The Scottish Government’s initial understanding of and response to the nature and spread of Covid-19 in Scotland in the period between January and March 2020 in light of information and advice received from the UK Government and other relevant national and international bodies, advice from scientific, medical and other advisers, and the response of other countries, including its initial strategic response to key superspreader events in Scotland over that period.

The initial Scottish Government response will thus be examined in which systems were set up to deal with the emerging threat. An analysis of the initial three-month period of the pandemic in 2020 again requires there to be consideration of the interaction between the Scottish Government and the UK Government as well as advisory bodies. Information which was available and shared, the decision-making structures over this period, and the effectiveness of them will be explored, building on the evidence elicited in this area in Module 2.

The response to the initial outbreaks of the disease such as the Nike conference in Edinburgh in February 2020 will be considered. The Inquiry will examine how these outbreaks were handled and how lessons from them were learned for the further management of the pandemic within Government.

The outline scope continues.

Decision-making by the Scottish Government relating to the imposition or non-imposition of non-pharmaceutical interventions (NPIs), including lockdowns, local restrictions, working from home, reduction of person-to-person contact, social distancing, of the use of face coverings, border controls, the initial development of “Test and Protect”, as well as the certification and app systems rolled out by the Scottish Government.

The degree of and rationale behind differences in approach between the Scottish Government and other governments in the UK, the timeliness and reasonableness of such NPIs, including the likely effects had decisions to intervene been taken earlier or differently.

The development of the approach to NPIs in light of the Scottish Government’s understanding of their impact on transmission, infection and death, the identification of at risk and other vulnerable groups in Scotland, and the assessment of the likely impact of the contemplated NPIs on such groups in light of existing inequalities.

And the impact, if any, of the funding of the Scottish pandemic response on such decision-making, including funding received from the UK Government.

This section of the outline scope provides a non-exhaustive list of the main measures implemented by the Scottish Government. The Inquiry team have felt it important that the decisions to implement these key protective measures are scrutinised near the start of the Inquiry’s work. These measures were designed as component parts of the system to protect the health of the public at large and not in particular parts or areas of society, and were used to varying degrees and at different times in all four nations.

This examination will allow a comparison and an analysis of the effectiveness of the measures taken at this overarching strategic level.

It was thought important that these key measures were identified, analysed and reported on as a context in which the impact of the pandemic on specific sectors of Scottish life and society can be examined in particular detail in subsequent modules.

The actions taken by the Scottish Government to identify and protect at risk and vulnerable groups will also feature. This was an area which was highlighted as being of particular importance in the public consultation exercise. It will in part form the basis of what we anticipate will be one of the most important elements of the Inquiry’s work insofar as it relates to Scotland, namely the examination in due course of the effect of the pandemic on the care sector in Scotland.

The funding available for these measures to be formulated and implemented will also be looked at, and to understand the extent to which that impacted upon the Scottish Government response.

The outline of the scope continues.

Access to and use in decision-making of medical and scientific expertise, data collection and modelling, relating to the spread of the virus in Scotland.

The measuring and understanding of transmission, infection, mutation, reinfection and death rates in Scotland.

And the relationship between the operation of relevant systems for the collection, modelling and dissemination of data.

So this module will also examine the data and advice available to the Scottish Government in the formulation and implementation of its response to the pandemic.

The outline scope continues.

Public health communications by the Scottish Government and other key public health agencies, in particular in relation to the steps being taken to control the spread of the virus, transparency of messaging, use of behavioural management and the maintenance of public confidence in the Scottish Government, including the impact of any alleged breaches of rules and standards by ministers, officials and advisers.

The module will also look at the way in which the Scottish Government communicated its message about the measures which it had decided to take as the key part of its defence against the virus, as well as the extent to which it and the general conduct of the Scottish Government decision-makers and advisers maintained the necessary public confidence to protect public health.

The outline scope concludes.

The public health and coronavirus legislation and regulations that were proposed and enacted, their proportionality and enforcement across Scotland.

The final area which will be considered is the way in which the Scottish Government chose to regulate the systems which it implemented to mitigate the spread and effects of the virus and the way in which these rules were enforced in the interest of the protection of the public.

So, my Lady, that bring me to an end of the section of my presentation relating to the intentions with regard to Module 2A, what we intend to do before and after it.

I intend now to move on to providing some information for those who are listening about the work of the Inquiry so far.

The fourth item on my list of ten was the Listening Exercise. As I have pointed out, the consultation exercise provided useful insight into the breadth and depth of the ways that the pandemic had an effect on Scottish society. It also elicited strong opinions from those who responded about what had gone wrong, what should have happened and who was responsible. The Inquiry will conduct its work, make its conclusions and recommendations in the public interest.

In order to assist with its important work, the Inquiry needs to put the views and experiences of the public at its heart, whilst also recognising that an investigation about a pandemic which has touched the lives of the entirety of the public, not every case can be examined individually. Indeed, the terms of reference make it clear that the Inquiry should not consider in detail individual cases of harm or death.

The Inquiry is in the process of designing and setting up a process by which the experience of those affected by the pandemic and the UK’s response to it will be gathered, analysed and summarised. This will be called the Listening Exercise, which of course will involve listening to members of the public in Scotland. Details of the proposal can be found on the Inquiry’s website.

The Listening Exercise will be open to the bereaved and anyone else impacted by the pandemic. Your Ladyship announced yesterday that organisations have now been appointed to carry out the Listening Exercise and that there will be a consultation with the bereaved and others affected to make sure that the process is set up in a way which is not intimidating.

We note the submission made to this hearing by Scottish Covid Bereaved about regard being desirable to the fact that the Scottish Inquiry will be conducting a similar exercise. That has been noted and will be taken into consideration in our ongoing co-operation with the Scottish Inquiry.

The experience of those who feel that they would like to contribute to the Listening Exercise will be anonymised and reviewed by research specialists, and will be collated into summary reports. The resulting reports, rather than individual accounts, will be aligned with and fed into the Inquiry’s work, particularly those dealing with the direct and indirect consequences of the pandemic on the health and care systems, the vulnerable, the elderly, children and the disabled, the public sector, businesses and other sectors of the economy.

The reports will be disclosed to core participants and will form part of the evidence of the Inquiry and thus of the evidential basis upon which it will reach its conclusions and recommendations.

The Inquiry will listen to accounts of harm suffered or death. This process will hopefully create important cathartic benefits for those who participate in the Listening Exercise. Those who give accounts will rightly expect that they will be both listened to and heard, and that their accounts are part of the Inquiry’s assessment of the whole of the pandemic as it affected Scotland. They will be.

In the course of the preliminary hearing in Module 1, the Inquiry received submissions to the effect that the Inquiry shall allow evidence of the circumstances of individual deaths and pen portrait material to be heard at the public hearings. By way of a ruling of 17 October of this year, your Ladyship decided that evidence of the circumstances of individual deaths and pen portrait material will not, as a general rule, be led at the oral sessions either in Module 1 or in later modules.

Evidence of individual deaths may well be relevant, however, where they relate to possible systemic failings. Your Ladyship has, however, indicated that the issue will be kept under review.

Given the scale of the tragedy brought about by the pandemic and the grief and loss suffered by the bereaved, the Inquiry wishes to provide opportunities for those who are lost to be commemorated as part of the Inquiry’s process. Your Ladyship has made it clear to the Inquiry team that you believe it to be important and appropriate to recognise the human suffering arising from the pandemic, including the loss of loved ones, by ensuring that it is reflected throughout the Inquiry’s work. The Inquiry is exploring ways in which this can be done, including by way of a commemorative memorial in the future hearing venues, including in Scotland, through the Inquiry’s public hearings and through the Inquiry website. The Solicitor to the Inquiry announced yesterday that the Inquiry will be holding a series of workshops to explore different ways of commemorating those who were lost during the pandemic.

To turn then to the important matter of the designation of core participants.

The Inquiry is governed by the provisions of the Inquiries Act 2005 and The Inquiry Rules 2006. Designation as a core participant in Module 2A gives any entity, organisation or person with that status certain rights which they enjoy to allow them to participate in the modules and to assist the Inquiry with the fulfilment of its terms of reference.

These include rights to receive disclosure of certain documents and statements, make certain legal submissions, suggest certain questions be asked, and to receive advance notice of the Inquiry’s report.

Those who are responsible for the delivery of this module are committed to fostering a collaborative approach with the core participants, and working in that spirit to ensure that the aims of the Inquiry are met.

Applications for core participant status in Module 2 have been considered by you, my Lady, in accordance with Rule 5 of The Inquiry Rules 2006, which provide that the chair of an inquiry such as this must consider whether:

“(a) the [applicant] played, or may have played, a direct and significant role in relation to the matters to which the inquiry relates;

“(b) the [applicant] has a significant interest in an important aspect of the matters to which the inquiry relates; or

“(c) the person may be subject to explicit or significant criticism during the inquiry proceedings or in the report, or in any interim report.”

In order that core participant status can competently be granted.

In making these determinations, your Ladyship considered whether in each case the application fulfilled the criteria set out in Rule 5(2) in relation to the issues set out in the provisional outline of scope for Module 2A. In doing so, your Ladyship exercised her wide discretion, bearing in mind a number of features. First, regard was had to the obligation to run the Inquiry as thoroughly and as efficiently as possible, bearing in mind the Inquiry’s wide-ranging terms of reference and the need for the Inquiry process to be rigorous and fair.

Given the vast numbers of people who were involved with or adversely affected by the Covid-19 pandemic in Scotland, as elsewhere in the UK and indeed the world, very many people could claim to have an interest in the Inquiry. That, however, is not the test, and your Ladyship was obliged to assess very carefully whether in reality applicants could assist the Inquiry in Module 2A.

Secondly, applications were determined in the knowledge that it is not necessary for an individual or organisation to be a core participant in order to provide evidence to the Inquiry.

Thirdly, regard was had to the fact that the Inquiry will also be listening to and considering carefully the experiences of those who have suffered hardship or loss as a result of the pandemic through the Listening Exercise.

As I have already said, this process will be designed to result in the input which is generated having a real impact on the way that the Inquiry’s business is conducted, in particular as we reach the detailed areas for analysis in the later modules.

By way of overview, the Inquiry received 17 applications for core participant status in Module 2A. Of these 17 applications, seven applicants have been designated as core participants in Module 2A. They are: the Scottish Ministers; Scottish Covid Bereaved; the Trades Union Congress, in particular the Scottish Trades Union Congress branch; Public Health Scotland; NHS National Services Scotland; Scottish Care; and the National Police Chiefs’ Council.

Applications for re-consideration for core participant status were received and have been determined in writing to the unsuccessful applicants. Of these successful applicants, as I’ve already said, representatives of all of the seven core participants are present either remotely or in the hearing room today.

For the avoidance of doubt, determinations which have been made by the Chair in relation to Module 2A in no way prejudice the ability of any applicant to apply in another later module which may in any event be more suited to the interests of any particular applicant.

It is the intention of the Inquiry to open up clear lines of communication with those who have been accorded core participant status in this module. Lines of communication are being formed at various levels in connection with this module already. Efforts in that regard will continue. It will be the intention of the Inquiry to introduce mechanisms in due course which will facilitate real and meaningful participation of those who have been accorded this important status.

As I have already said, it is of course not necessary for a individual or organisation to be a core participant in order to provide information or evidence to the Inquiry. In due course a range of individuals, organisations and bodies will be approached for information and will be asked for witness statements and documents in connection with this module.

Turning then to the next in my list, the sixth of my list of matters to be addressed today, namely evidence requests and corporate statements.

As far as documentary evidence requests are concerned, the Inquiry team working on Module 2A intends to issue documentary requests to document providers who are likely to hold large numbers of relevant documents following a system which, it is hoped, will result in documents being produced in as efficient a manner as possible.

These are made in accordance with the Inquiry’s rules under Rule 9 and so are generally called “Rule 9 requests”. What is currently planned is that the requests will initially be sent in draft and then there will be an opportunity for consultation between the Module 2A team and the provider to discuss practical arrangements and expectations. All documents will, where relevant, make clear how the request seeks to minimise duplication of effort as between the two Inquiries, to which I will later return.

It is expected that within the next few weeks calls for documents for Module 2A will be sent to Scottish document providers. One has been prepared and will imminently be sent in draft to the Scottish Government. Others who will be contacted in early course with similar requests will be the Director General for Health and Social Care, NHS National Services Scotland, Public Health Scotland, the Scottish Government Covid-19 Advisory Group, as well as ministers and former ministers. The initial requests which have been or are in the process of being prepared will be lengthy and wide-ranging.

As part of the exercise of co-operation with the Scottish Inquiry, to which I will return in a moment, we are aware that certain document bundles have already been or are in the process of being put together by the Scottish Government, with whom Module 2A will be primarily concerned, as a result of requests issued to them by the Scottish Inquiry.

Part of the work which has been undertaken by the Inquiry team has been designed to ensure that the work put into the gathering of these documents is not duplicated unnecessarily. Our intention, therefore, is to ask the Scottish Government in the first instance for production of certain of the documents already provided or which are in the process of being provided to the Scottish Inquiry and which are relevant to this module.

The result of that is that it is anticipated that a tranche of relevant documents should be capable of production to this Inquiry during the course of this year. This approach will be followed insofar as possible with other requests issued to other document providers under Rule 9 within this module.

We will be working with the other sub-modules, with Module 2, with Module 1 and the other modules in the Inquiry in due course, to ensure that information is shared and that evidential requests are not duplicated. We will not be working in silos, in order to maximise efficiency.

Further documentary requests for Module 2A beyond these initial ones will be issued in due course, with greater focus on particular issues or topics. In due course, requests for witness statements from appropriate individuals will also be issued.

As a number of core participants have raised the matter in the notes they have provided for this hearing, I am keen to stress that we are working with the material providers who are likely to be in possession of the main materials relevant to this module, and will be holding preliminary consultative meetings before final documentary requests are issued, so that we can keep them informed of the process we intend to undertake, and to enable us to understand any practical limitations of which we should be aware. We have made contact with the Scottish Government’s representatives regarding requests for evidence to make arrangements to engage in this way and we will be contacting other material providers shortly.

To move on, then, to the question of corporate statements.

Requests are likely to be made for a chronology and a corporate statement of large organisations, like the Scottish Government, for whom a request for a corporate statement will be issued imminently. Amongst other things, the corporate statement will include a request for what is likely to be uncontroversial structural information, as well as general factual evidence from the organisation about their involvement in matters relevant to this module. These statements will be of a factual nature and will not seek to elicit a position from the organisation about their interpretation of what happened. They will respond to targeted questions about the factual matters of interest to this Inquiry. They aim to maximise efficiency, as the Inquiry is obliged to do, by seeking to get to the core of the factual issues. Organisations will also be asked to ensure staff have the opportunity to flag what they at least consider to be particularly important materials, so that these are identified and reviewed by the Inquiry as soon as possible.

In line with the determination made in Module 1, core participants will not be provided with copies of the Rule 9 requests made by the Inquiry. This is a matter which was also addressed during the questions asked, I think, at the end of Module 2 preliminary hearing yesterday.

This accords with the approach adopted in other Inquiries. Disclosure to the core participants of the Rule 9 requests themselves as opposed to the relevant documents and material generated by them, is neither required by the rules nor generally established in past practice.

Furthermore, it would serve little practical purpose given the wide scope and detailed nature of the Rule 9 requests that are being made.

However, to ensure that core participants are kept properly and rightly informed, the Inquiry will ensure that the Module 2A lead solicitor provides monthly updates to core participants on the progress of Rule 9 work. Such updates would, in general terms, include details of what requests have been made, whether documents have been received, when further documents are expected, and when further Rule 9 requests have been made.

Your Ladyship declined for the purposes of Module 1 to order that position statements be made by state and organisational core participants and document providers. In Module 2A the Inquiry will similarly examine a wide range of policies and decisions over a number of years by a significant number of directorates, bodies and entities.

This subject matter does not lend itself readily to the preparation of position statements until a core participant or document provider is sufficiently confident of their knowledge of all the relevant issues and documents. That will take time, given the large number of matters to be addressed and the voluminous documentation. The making of an order for position statements would therefore be likely to lead to delay.

In any event, the Inquiry is requesting key Rule 9 recipients to provide the corporate statement, as I have said, setting out amongst other things a narrative of relevant events, including lessons learned.

Counsel to the Inquiry does not therefore propose that position statements be ordered for the purposes of Module 2A.

Moving then to my next heading, which is disclosure to core participants.

Disclosure of materials to the core participants is an important part of enabling them to participate effectively in the process. This Inquiry will be as open as possible with the core participants and with the public in relation to the disclosure of documents. The Inquiry’s approach is to request document providers, through the Rule 9 process, to provide information and documents that are likely to be relevant to the issues and matters identified in a particular module. Recipients of Rule 9 requests are being made aware of this obligation and of the strict duties the law places upon them in relation to the preservation and retention of documentation.

The information and documents received will be assessed for relevance and then redacted in line with the redactions protocol that has been prepared and published on the Inquiry’s website, so as to remove sensitive material such as personal data.

It is neither necessary nor proportionate for the Inquiry to disclose every document that it receives or every request that it makes or every piece of correspondence. That is not required, and would hinder the Inquiry in the performance of its functions. It would also be a derogation of the Inquiry’s functions were it to pass to the core participants all of the material that it receives.

Each document provider is being asked to provide an account setting out details of the nature of the review carried out, how the documents were originally stored, and the search terms used or other processes used to locate documents. Where the Inquiry has any queries or concerns about a document provider’s process for locating relevant documents, it will raise and pursue them. And of course, as documents are reviewed and gaps identified, further documents will be sought. The extent to which this will be necessary in Module 2A will depend on the likely volume and relevance of material which each document provider has.

The disclosure of the relevant and redacted documentation will be in tranches. All core participants in the same module will receive all disclosable documents for that module. In light of the above approach, your Ladyship has determined, and made a determination to this effect in Module 1, that she does not consider it appropriate for the Inquiry to publish either a disclosure protocol or a schedule setting out an itemised list of documents or other material that is not intended to be disclosed to the core participants.

The electronic disclosure system which will be used to provide documents to core participants will be the Relativity system. Details of how to access the system and use it will be provided to core participants shortly before disclosure commences. Only those who have provided a signed undertaking to the Chair will be permitted to access the material that the Inquiry discloses to core participants. The Inquiry is working to begin the process of disclosing materials to core participants as soon as possible. The process of disclosure to core participants for Module 2A is likely to begin in early 2023.

Turning then to the important question of expert material and the instruction of expert witnesses.

A number of individuals with expertise are likely to be giving evidence at public hearings of the Inquiry as witnesses of fact. However, the Inquiry will also appoint qualified independent experts in particular areas. They will assist the Inquiry either individually or as part of a group of such persons by way of the provision of written reports and opinions, including the answering of specific questions asked of them by or through the Inquiry and, where appropriate, the giving of oral evidence at public hearings of the Inquiry.

Such reports and evidence will inform and support the Inquiry’s work during the public hearings as well as your Ladyship’s recommendations by ensuring that its factual conclusions and recommendations are soundly based and informed by the weight of best expert opinion.

Such experts will have the appropriate expertise and experience for their particular instruction. They will be independent and objective and subject to an overriding duty to assist the Inquiry on matters within their expertise.

The identity of the expert witnesses and the questions and issues they will be asked to address will be disclosed to the core participants before the expert reports are finalised. Questions asked of experts will include seeking their input on Scottish issues. Core participants will, therefore, be provided with an opportunity to provide observations.

Where there are significant differences of view or emphasis among the members of a group, these will be made clear on the face of the reports and of course these can be tested during the oral hearings.

The appointment of experts to the Inquiry, whether they are assigned to a particular group of experts considering particular issues or not, are matters exclusively for the Inquiry, although it will consider suggestions from core participants as to whom should be appointed.

The Inquiry has provisionally identified a number of specialist areas in relation to which both lay and expert witnesses are likely to be giving evidence in Module 2, and potentially also Modules 2A, 2B and 2C if necessary and appropriate. A significant number of experts have already been conditionally approached; additional suggestions from core participants are welcome.

These areas are likely to include:

One, public policy and governance. This group is likely to be asked to look at matters including structures for decision-making and co-ordination of strategy and crisis management within government departments and directorates and their effectiveness; governance and accountability of government departments and directorates; reliance upon scientific and other evidence in policy and decision-making; and co-ordination between central and devolved administrations.

Secondly, it is likely that a report will be commissioned on systems for measuring and estimating numbers of infections and deaths, and registration of deaths, which will provide overall figures for infection and death, including within Scotland.

It is likely that a report will also be commissioned on: statistical methods in infectious disease epidemiology, mathematical modelling of the spread of virus transmission, infection, mutation, reinfection and death, international comparison of modelling systems; data sharing in government and with regional and devolved administrations, and counterfactual modelling to estimate whether and how different decisions would have resulted in different outcomes.

Finally, at this stage, it is likely the report will be commissioned on: intragovernment and public communications and behavioural science, the impact of messaging and the maintenance of standards of public behaviour, the impact of behavioural, social and environmental factors on infectious disease transmission, and, finally, compliance.

Turning then, my Lady, to the next section of my presentation, which deals with efforts which have been made to ensure co-operation with the Scottish Covid-19 Inquiry.

As many if not all of the audience will know, the Scottish Government has established a separate Inquiry into the Covid-19 pandemic in Scotland. Its establishment was announced to the Scottish Parliament by the Deputy First Minister of Scotland on 14 December 2021. Its official set-up date was 8 February 2022. That is an investigation of matters which fall within the competence of the Scottish Parliament and which relate to the handling of the pandemic in Scotland. It has its own terms of reference and is an independent process from the work of this Inquiry.

Devolved matters will be examined by this Inquiry also.

In addition, this Inquiry will address and will require to report upon matters which relate to Scotland but which are within the reserve competence of the UK Parliament and Government, which the Scottish Inquiry will not address. This Inquiry is obliged by its terms of reference to minimise duplication of investigation, evidence gathering and reporting with the Scottish Inquiry.

In addition, this Inquiry is required to publicise its approach as to how it intends to fulfil that obligation and to liaise with the Scottish Inquiry.

As many of the areas which were touched upon by the pandemic fell within the devolved competence of the Scottish Parliament, in particular the important areas of health and social care, there is a considerable overlap between the remits of the two Inquiries. Our interpretation at present is that all matters falling within the scope of the Scottish Inquiry also require to be examined, analysed and reported on independently by this Inquiry.

This will, of course, require to be re-analysed as the Deputy First Minister of Scotland announced last Thursday, 28 October, the appointment of a new Chair, who took up his position on Friday, 29 October, namely Lord Brailsford.

It was also announced on Thursday that the Scottish Inquiry’s terms of reference would be supplemented from Friday to change the reporting requirements of that Inquiry so that it would focus on a person-centred and human rights based approach.

I am pleased to be able to report that a considerable effort has been made at various levels within this Inquiry’s team to explore means by which these requirements might best be met in the work of the two Inquiries. This has involved discussions as to how best the two Inquiries might co-operate whilst retaining their separate and independent obligations to investigate and report on matters falling within their respective terms of reference.

Those discussions have made progress in relation to the agreement of certain key principles as well as in connection with operative and practical measures which might be put in place to minimise duplication.

A draft memorandum of understanding has been worked up between the two Inquiries. Duplication requires to be minimised not only in the work of the two Inquiries themselves but also in the efforts which will be required by the two Inquiries from document providers, witnesses, core participants and other interested parties, in order for both Inquiries to fulfil their independent terms of reference.

This approach is consistent in any event with your Ladyship’s obligation under section 17(3) of the 2005 Act to take all decisions as to the procedure and conduct of the Inquiry with fairness and with regard also to the need to avoid any unnecessary cost, whether to public funds or to witnesses or others. The result of these productive discussions will be published in due course.

Discussions between the two Inquiries continued during the period before the appointment of Lord Brailsford last Friday. Those discussions will continue now that a new Chair has been appointed. It is anticipated that new staff and counsel will be appointed within that inquiry. We will require to see whether the appointment of the new chair and these new staff and counsel will in any way alter that Inquiry’s approach to the fulfilment of its terms of reference. The details of the mutually agreed arrangement to minimise duplication which have been under discussion will therefore require to be finalised with the Scottish Inquiry team in due course.

I have now just a few concluding remarks to make before moving on to some detail about future hearings.

It is important to emphasise a number of important factors about the Inquiry’s approach for those who are interested in the proceedings and in the business of this Inquiry, in particular as it relates to Scotland.

Firstly, this Inquiry is independent. It will undertake investigations, ask questions, demand answers, draw conclusions and make recommendations independently of those who held positions of responsibility, made decisions or gave advice in the pandemic. Particularly, it will operate independently of the UK Government and the Scottish Government. It will do so with tenacity in the interests of the Scottish public without fear or favour. Those with an interest in the subject matter of the Inquiry can be confident that this will be the Inquiry’s approach throughout.

Secondly, this is a UK Inquiry, not a series of individual national Inquiries. This means that it has the power to seek evidence and probe areas across the UK; it is not limited to any particular area or nation. This brings with it considerable advantages, for example the ability to seek answers in a wide variety of places, the ability to draw upon a wide variety of experiences of how the Inquiry overall might be run most efficiently, and the ability to compare and contrast approaches to the management of the pandemic in all four nations of the UK and the effects of decision-making which resulted from them.

This in turn will lead to fully informed conclusions and recommendations. It also brings with it the challenge that fairness and consistency demand that decisions about the structure and process of the Inquiry need to be carefully thought through and co-ordinated so as to maximise these advantages of the Inquiry’s national remit. This consideration is rendered all the more complex in the case of the Scottish matters due to the requirement that we also minimise duplication with the Scottish Inquiry.

We will seek to structure the Inquiry as we go forward in a way that appears to us to facilitate the most thorough investigation of the matters relating to Scotland falling within our terms of reference, but we will do so with those needs and challenges in mind.

Thirdly, those who are asked to provide assistance to the Inquiry, be it in the form of documentary discovery, by way of written statement, or in the form of oral evidence at the forthcoming hearings, can be assured that they will be treated with courtesy and respect. Regard will be had to practicality.

However, it should be borne in mind by such bodies or individuals that you, my Lady, have set a clear timetable for the hearings of the Inquiry to take place and, ultimately, for the Inquiry to discharge its terms of reference. For Module 2A, public hearings of oral evidence will take place in Scotland in autumn 2023. You have done this for the good reason that the sooner the Inquiry can reach its conclusions and discharge its terms of reference, the sooner the public can benefit from the lessons which have been learned.

There requires to be a balance between speed and reasonable thoroughness of investigation. As such, those asked to provide evidence should bear in mind that that timetable has been set. They will be expected to comply with requests for evidence in a way which devotes sufficient attention and resources to them to enable our important deadlines to be met.

My Lady, as far as future hearings within this module are concerned, a further preliminary hearing for Module 2A is likely to be held in early 2023. As with this preliminary hearing, it is likely it will take place in London, with remote access being made available for core participant representatives and livestreaming for the public. The date and venue will be confirmed in due course.

At that hearing an update will be provided as to progress which has been made in investigation of matters within Module 2A, as well as any update or refinement of the scope of the module in light of the investigative procedures which have been undertaken.

At some point it is anticipated that core participants will be allowed to make an opening statement. Core participants and the public will be kept appraised of any developments in that regard by appropriate means in due course.

As I have already said, the public hearings of oral evidence in Module 2A will take place in Scotland in autumn 2023. Further details will be announced in due course. As we understand it, the Scottish Inquiry will not be hearing oral evidence until 2024. Subject to the possibility that recent developments may change their plans, the proposed hearing date for the Module 2A hearings in this Inquiry will not clash with the oral hearings in that Inquiry. This was a matter raised by one of the core participants in advance of this hearing.

Finally, may I say, my Lady, that the Inquiry and the Module 2A team were appreciative of the written submissions made in advance of this hearing by the core participants. I hope that the points raised in them have been addressed as far as we can at this stage by what I have already said. Otherwise, the points which have been made have been noted and will be given consideration going forward.

I understand that the oral presentations are to be made on behalf of four of the core participants.

That concludes my presentation. I might suggest at this stage we take a short break.

Lady Hallett: Thank you very much indeed for your help, Mr Dawson.

I shall return at 11.20.

(11.06 am)

(A short break)

(11.20 am)

Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Lady Hallett: All right. Ms Mitchell.

Ms Mitchell: Good morning, my Lady.

I appear on behalf of the Scottish Covid Bereaved, as instructed by Aamer Anwar & Co solicitors.

As noted by Senior Counsel to the Inquiry, the impact of Covid on Scotland has been profound, no more so the impact on those who lost loved ones.

The day after the preliminary hearing for the first module, we were advised that four members of the Scottish Covid public inquiry legal team had stepped down, including one of its senior counsel, and the Chair, Lady Poole, was going to step down for personal reasons in three months’ time.

Since that time, a new Chair, Lord Brailsford, has been appointed, which has been welcomed by the families. He plans to meet the families in Scotland soon, and we understand he’s working at a pace to get up to speed.

The Scottish Covid Bereaved are especially anxious, in light of these unfortunate difficulties, to ensure that Module 2A, indeed all modules, are carried out rigorously and in co-operation with the Scottish Inquiry. They wish to ensure that the voices of the Scottish bereaved are heard at both Inquiries.

In particular, for this module, the following seven issues are raised:

One, co-operation between Inquiries. My Lady has already touched upon these matters in her opening remarks, and we are grateful for her statement of intent, and glad to hear that she will soon meet with Lord Brailsford. We are encouraged too to hear that discussions are going on between the Inquiry teams and discussions on operative and practical issues as outlined by Senior Counsel to the Inquiry are ongoing.

The Scottish Covid Bereaved understand that the Inquiries will work together to ensure that, insofar as possible, there is a minimising of duplication of investigation, evidence gathering, and reporting, whilst at the same time ensuring no matters fall between the two Inquiries.

We note that senior counsel this morning has set out in some detail how he hopes this will work.

The Scottish Covid Bereaved understand that both Inquiries recognise the importance of being clear which Inquiry is responsible for looking at which issues. It hopes that if and when any grey areas arise, the Inquiries will work together to ensure which Inquiry is best suited to properly examining the particular issue.

Echoing what has been said by my Lady and also Senior Counsel to the Inquiry, the Scottish Covid Bereaved hope there will be a high degree of co-operation between the UK and the Scottish Inquiry. We understand from my Lady’s comments at an earlier stage that a “protocol of understanding” will be drawn up, or some such terminology. We would ask that that document be made available to those in the public domain to ensure transparency and to foster confidence in that process.

Two, the Listening Exercise Scotland. We have noted that the Scottish Inquiry states it intends to pilot listening project activities later this year with a view to informing the Scottish Inquiry’s investigations and report to the Scottish Government on the lessons that need to be learned to ensure that they are better prepared for any future pandemic.

We are unaware whether this intends to duplicate the work that the UK Inquiry will be doing in relation to the Listening Exercise, and the Scottish Covid Bereaved hope that this can be clarified going forward as soon as possible.

My Lady has already stressed the importance of the listening project to assist and inform her consideration of the evidence led at the Inquiry. The same importance will no doubt be placed on the Scottish Inquiry.

Given the importance of the Listening Exercise to both Inquiries, no doubt families would, if necessary, give their statements twice, but it would be helpful and minimise upset to families if in any way that could be avoided.

Three, timings. We are very grateful to hear from Senior Counsel to the Inquiry this morning that Module 2A hearings will not clash with the oral hearings in the Scottish Inquiry, and this will be of comfort to those listening in Scotland today. We would ask that, going forward, the Inquiries work together to ensure that there is no clash of hearing dates for both Inquiries. As I’m sure this and the other Inquiry appreciate, evidence being led in both Inquiries want to be heard by the Scottish Covid Bereaved.

Four, disclosure. The UK Inquiry is ingathering documents in respect of the Scottish module. There will of course be a significant, if not whole overlap with the documents also sought by the Scottish Inquiry. We note senior counsel’s comments in this regard. We would suggest that a schedule of disclosed documents are shared to ensure that both Inquiries proceed insofar as possible on the same information.

We reiterate the request for the Rule 9 applications be made available. We do not know whether or not the Chair will take or could take different views on different sub-modules. If it is the case that the Chair may do so, then the following submissions are made in the hope to assist my Lady in that regard.

The argument for the Rule 9 applications being disclosed was made repeatedly and in different forms yesterday, and I do not intend to rehearse that. My Lady heard from a number of skilled orators in that regard.

I would like to briefly address the response to those arguments that Senior Counsel to the Inquiry gave yesterday. He stated that the reasons for not giving those documents to core participants were twofold: one, that it would cause too much work for the Inquiry team to be able to cope with; and, following on from that, two, after receiving the Rule 9 applications those representing the interested groups would doubtless have views on whether other or different documentation should also have been asked for, and in turn this might lead to an overall delay in the process.

As stated yesterday, the ingathering of relevant evidence is key to an understanding how central government responded to the pandemic. If this task is not carried out correctly, the foundation on which the Inquiry rests, the cornerstone, is very much weakened. A transparent system of disclosure of course enhances the robustness and legitimacy of the process.

Those who have been given CP status wish to assist the Inquiry with its work. Mr Keith King’s Counsel accepted that the responses to the Rule 9 requests may well beget more Rule 9 applications. That being so, it would seem not just reasonable but sensible to allow the groups who have core participant status to bring a wealth of knowledge to this task and to bring such expertise and interest to a critical part of the Inquiry process. Such involvement at this stage could only enhance the robustness of the disclosure process.

If that takes longer than would otherwise be the case, what would be lost? Time. The Scottish Covid Bereaved absolutely want the Inquiry to proceed with all due haste, but not at the expense of getting the critical process of disclosure correct.

We are grateful for the monthly liaison offered by the Inquiry legal team in relation to disclosure, and will of course be taking up this offer. However, such liaison being uninformed as to the details of Rule 9 application will inevitably be of limited assistance in allowing the expertise of core participants to assist the Inquiry in this regard.

Accordingly, I would ask that my Lady give very careful consideration to allowing core participants sight of the Rule 9 applications, for the very same reason that my learned friend Mr Keith KC sought to suggest would not necessarily be a positive, which is in order that we can have that very input.

Moving on, five, listening rooms. We are grateful to the feedback from the Chair to the Inquiry that it is considering the listening rooms idea for Scotland. We understand that hearing 2A for Scotland will be held in Scotland. As the Inquiry is aware, the geography of Scotland is such that it may not be people to travel to the Inquiry even when it sits there. Accordingly, we would ask that consideration be given to listening rooms even when the Inquiry is sitting in Scotland.

Six, evidence of individual deaths. The Scottish Covid Bereaved wish to assist the Inquiry to understand any possible systematic failings, in respect of providing evidence of individual deaths where appropriate. We would ask that the Inquiry liaise with us about this possibility where and when it arises in order that we can assist the Inquiry by providing information and allow consideration of evidence from those in the Scottish Covid Bereaved group.

Finally, seven, the Inquiry has already heard from the Scottish Covid Bereaved in relation to its views on memorialisation and we gave submissions on that in the opening of the Inquiry in some detail. I would only reiterate that the importance to those in Scotland is that any memorial is capable of being brought to Scotland when the Inquiry sits there to ensure that those who wish can go and see it.

Those are my submissions on behalf of the Scottish Covid Bereaved.

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

As you have obviously noted, I am very conscious of the need to work closely with the Scottish Inquiry. It hasn’t been easy, with the difficulties that the Scottish Inquiry has had, and that is why the parties have not yet seem any memorandum of understanding. We were close to agreeing it and then counsel and the Chair had to step down.

So I hope that when I meet Lord Brailsford – the teams have carried on working, as you have heard, and I hope that we will be able to finalise it very soon, and obviously then you will get a copy.

And the other points I will very much bear in mind. So thank you very much indeed.

Ms Mitchell: I am obliged.

Lady Hallett: Now I think we’re going to a remote presentation. Mr McConnell for NHS NSS.

Submissions on Behalf of Nhs National Services Scotland by Mr Mcconnell

Mr McConnell: Good morning, my Lady.

Yes, I appear for NHS National Services Scotland, my Lady. NHS NSS lodged written submissions which identified three matters. Those can be found at page 5 of the 23-page pdf bundle of the core participants’ written statements for today.

Lady Hallett: Thank you.

Mr McConnell: My Lady, I propose addressing very briefly each of the three matters that feature therein.

The first of those is duplication. Matters have in fact moved on since this written submission was lodged, in respect that yesterday I corresponded with and had a helpful discussion with Mr Dawson KC. He explained to me the position as per his submissions this morning and, in light of that, there is at present no need for any further discussion of the terms of the terms of reference or the potential need for a public statement.

Lady Hallett: Thank you, Mr McConnell.

Mr McConnell: The second matter raised was the position and corporate statements. I note what was said this morning, which was helpful clarification. Obviously there has been further information provided about what is contemplated by the corporate statements, and at this end we simply need to consider that quite carefully and reflect on it. But the clarification is helpful.

The third matter is the practicalities, and most pressing of those is the question of dates and precise dates for the Scottish public hearing. I’m sure this is a matter which the Inquiry has relatively high up on its long list of priorities, but the point for the core participants, I’m sure all of the core participants, is that autumn 2023 is a relatively broad descriptor, it could be any time, I think, from September to November, and the sooner – at least from NHS NSS’s perspective – an identifiable period of time is identified, the better.

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

I do understand, I mean, words like “autumn” can be used by some to include, as you say, very long periods of time, and as soon as we have any greater certainty we will give you the details as necessary, because we do understand the burdens that Inquiries of this kind, the Scottish Inquiry, the UK Inquiry, place upon organisations that you represent. So thank you very much for your submissions.

Mr McConnell: Obliged.

Lady Hallett: Right. Mr Jacobs.

Submissions on Behalf of the Trades Union Congress by Mr Jacobs

Mr Jacobs: Good morning, my Lady.

With Ms Gallagher King’s Counsel unable to attend today, I appear on behalf of the Trades Union Congress, the TUC. The TUC has been designated as a core participant in Modules 1, 2 and also 2A, 2B and 2C. My Lady, you will have heard this before, but for the benefit of others, the TUC brings together 5.5 million working people who make up its 48 member unions from all parts of the UK. The Scottish Trades Union Congress, which forms part of the TUC, represents affiliated membership in Scotland. The Scottish Trades Union Congress represents over 540,000 workers across 39 affiliated trade unions and 20 trade union councils. As Roz Foyer, the Scottish TUC General Secretary, has put it: “[The Scottish TUC] speak[s] for trade union members in and out of work, in the community and in the workplace, in all occupational sectors and across Scotland. [Its] representative structures ensure that [the Scottish TUC] can speak with authority for the interests of women workers, black workers, young workers, lesbian, gay, bisexual, and transgender workers and other groups of trade unionists that otherwise suffer discrimination in the workplace and in society.”

My Lady, we did file some written submissions last Thursday, but with the oral submissions of yesterday and also this morning, the ground has shifted somewhat and I propose to address you this morning on four issues.

The first is the provision of early information to core participants on the focus of the Inquiry’s investigations, whether that be by way of disclosure of the Rule 9s, an early list of issues, or instruction to experts.

Second, issues of scope, and in particular the role of evidence of impact on Module 2A.

Third, to whom Rule 9 requests should be made.

Fourthly, and very briefly, the idea of strand-tying closing submissions after Modules 2, 2A, 2B and 2C have been concluded.

So, turning to my first issue, the provision of early information to core participants on the focus of the Inquiry’s investigations.

My Lady, the Inquiry did, of course, hear from a number of core participants on this theme yesterday in Module 2. You were urged by a number of core participants to enable them to play an early and constructive role in the identification of the key issues and the evidence gathering process.

I do want to avoid simply repeating submissions you heard yesterday, but I do offer these short submissions by way of reflection in part on what was heard.

My Lady, it is important, in my submission, to understand why this issue is of such concern to a number of core participants. The scope of each module has been set out in very broad terms only.

Mr Keith King’s Counsel yesterday described the terms of the identified scope as necessarily opaque. Perhaps Mr Keith was being a little unfair to the identified scope, but it is certainly right that with the breadth of the scope comes uncertainty as to what the Inquiry is actually investigating.

The Inquiry has been perfectly frank that it simply cannot investigate every issue and every event that might conceivably fall within the identified scope. That is for very good reason, and we don’t seek to persuade you to do otherwise, but that does underline the point that all the core participants really know is that they cannot assume that any particular issue which might on its face fall within the identified scope is necessarily being investigated.

My Lady, the approach gives rise to two concerns. The first concern is that a core participant may only learn that a particular issue has not been investigated when it is too late, when the substantive hearing is so close that the gap in the evidence gathering cannot be filled without jeopardising the hearing date.

That concern is particularly acute for Modules 1 and 2, where the hearings are really no more than six or seven months away, but the concern also arises in this module, with hearings no more than a year away.

If we only see a list of issues when the evidence gathering process is close to its completion, given the complexity of that exercise, it will inevitably be some significant time away.

The second concern is simply that there will be an opportunity lost for the Inquiry to benefit from the experience and expertise of those bodies such as the TUC designated as core participants. Ms Mitchell, on behalf of the Scottish bereaved families, made the point yesterday that the Rule 9 process is necessarily informed by the knowledge base of those drafting them, and the Inquiry can benefit from the knowledge of the core participants, and that’s a submission with which we agree.

Mr Keith King’s Counsel did address this issue in his submissions in reply yesterday, and respectfully, my Lady – and I hesitate somewhat because I’m conscious that Mr Keith is not here to respond –

Lady Hallett: Don’t worry, he can take it, Mr Jacobs.

Mr Jacobs: I’m sure he can.

His reply was striking. His perceived difficulty with the disclosure of Rule 9 requests was that, on receipt of those Rule 9 requests, the core participants may feel compelled to say something about them. It would, he said, set a hare running.

My Lady, what Mr Keith describes quite simply is core participants being able to engage in a meaningful way with the direction of the Inquiry. To decline to disclose Rule 9 requests with the objective that core participants cannot then make any observations about them is misguided. It is misguided because core participants being able to engage with the Inquiry should be the objective, it’s not the nemesis.

My Lady, there can also be some faith in the core participants, we say, and we sense, my Lady, that you do have that faith, and indeed Mr Dawson King’s Counsel spoke this morning about fostering a collaborative approach, and we are with the Inquiry with that.

For our part, we doubt that any core participant wants to attempt drafting Rule 9 requests by committee of the Inquiry team and a number of core participants. But we say the core participants can be more constructive than that. We can focus on areas of inquiry rather than the minutiae of a request.

The Inquiry legal team is also, we would suggest, perfectly able and sufficiently assertive to rebuff any attempts, misguided attempts, by a core participant to draft by committee rather than focusing on real and significant areas where the Rule 9s can be strengthened.

It has been observed, my Lady, and it was observed again by Mr Dawson this morning, that disclosure of Rule 9 requests is not something that has necessarily happened in other inquiries, but this Inquiry is slightly different. In many inquiries what issues the inquiry is investigating is actually relatively straightforward. In this Inquiry, given its breadth, it’s far from straightforward. There is a very significant issue which this Inquiry and its team has to grapple with, which is: what issues does it investigate?

It’s of fundamental importance to, ultimately, the outcome of the Inquiry, and that’s why in part core participants or many core participants are so anxious to have some input.

We do note, of course, that periodic updates are going to be provided, and that’s welcomed, but as to that, if sufficient detail is provided in the updates to enable meaningful and constructive engagement, then we ask rhetorically: why not provide the Rule 9 requests themselves?

If, alternatively, the information does not really enable meaningful engagement and the opportunity for constructive comment, then it does not meet the concern.

The short point, my Lady, is this: the Inquiry is urged to engage with core participants early and as openly as possible, and core participants need to know at an early stage what issues the Inquiry is investigating, and we can then engage constructively.

My Lady, turning to my second issue, the issue of scope and in particular the role of evidence of impact in Module 2 generally and 2A in particular.

In our written submissions on scope, the TUC pointed to the importance of education as a sector being relevant to decision-making on the use and effectiveness of non-pharmaceutical interventions or NPIs, in part because schools could be vectors for the spread of infection.

We also emphasise that the use and effectiveness of NPIs played out in significant part in workplaces. Whilst many were working from home, the frontline – and the real test of the effectiveness of social distancing, of masks and similar – was in workplaces which did not close or did so only for limited periods. That was workplaces in sectors such as the transport sector, the communications sector, the manufacturing sector, in particular food processing and textiles, the construction sector and the retail sector.

We said in the written submissions that it would be important to understand how NPIs were applied and were effective or otherwise in practice.

We made similar points about public health messaging and guidance for workplaces and the implementation of workplace safety standards in bodies such as the Health and Safety Executive.

We observe that there may be significant overlap between what has been described as the early modules, the system modules and the later impact modules.

In fact, from what we understand particularly of what was said yesterday, that may not be the case, as it may be thought that the political decision-making, which is the focus of Module 2, can be investigated and examined without at the same time considering and hearing evidence as to how those decisions were playing out in practice.

Mr Keith King’s Counsel explained that the task is to examine what consideration decision-makers had in mind and, where there is a gap, something that wasn’t considered that ought to have been, that will be manifest.

We do struggle with that logic. First, it presupposes that we all know what the relevant considerations and disparate impacts were, and the task is simply to see whether decision-makers had them in mind. But, my Lady, we don’t have that knowledge and that evidence. Some of the considerations and disparate impacts are now well known and obvious, but others less so.

No doubt the very reason the Inquiry is envisaging several later modules examining impact is to understand them.

Second, these weren’t decisions made by the devolved governments in the abstract, they were decisions with real world perceptible and obvious impacts, and those impacts should of course have fed back into decision-making.

To take some concrete examples within the TUC’s focus, the high mortality rate of bus drivers, the outbreaks of the virus in food processing plants, the emerging relationship between school attendance and community transmission, and many similar issues, should have fed into decision-making around NPIs and also reflection on and adjustments to public health messaging and guidance.

To take an example given by Mr Dawson King’s Counsel this morning, in August 2020 it was known that there was a higher proportion of deaths in care homes in Scotland. The question then is how that fed into political decision-making, which is the concern of this Inquiry, and this module in particular.

My Lady, we want to be in the business of constructive and practical solutions rather than simply pointing to problems and challenges. We absolutely recognise the value in a modular approach, and a modular approach was possibly the only realistic one open to the Inquiry. And inevitably issues between modules will overlap and the divisions between modules may not always be easy. We recognise that.

We recognise that you cannot hear all evidence as to the impact of decision-making in Module 2. What we do say is that you must have enough evidence as to impacts so that the issues falling within Module 2 have some all-important context. It may not be an easy task, but it can be achieved, we say, with carefully targeted Rule 9 requests.

The Inquiry at least has to start exploring the impact issues and have some evidence before it for the purposes of Modules 2, 2A, 2B and 2C to give some all-important context to the decision-making which is the focus of these modules.

My Lady, my third point, to whom Rule 9 requests should be made.

The Inquiry is invited to direct a Rule 9 request to the Scottish TUC, who will be able to give relevant and important evidence on the use and effectiveness of NPIs in workplaces in Scotland.

It may be of interest to you, my Lady, that the Scottish TUC met with the Scottish Government regularly throughout the pandemic. That included planning meetings twice per week between the Scottish Government and the Scottish TUC, as well as the Scottish TUC’s lobbying efforts. That meant that the Scottish TUC had some influence in shaping Scottish policy, for example in the designation of key workers and steps taken to ensure guidance was followed.

You may find, in due course, that that represents an area of divergence from the approach taken by the UK Government, and may be of interest to the Inquiry when considering the processes of decision-making.

We do recognise that the Inquiry’s starting point to address Rule 9 requests to the most central decision-makers is of course sensible, but in due course we invite a request to the Scottish TUC.

My Lady, it does appear to us that Rule 9 requests can also usefully be made of a number of professional bodies that played a significant role in cascading and adapting national public health communications into workplaces, but that, my Lady, is an issue which the TUC is giving some urgent consideration to, and we envisage writing to you in due course with, we hope, some constructive suggestions.

Fourth, and finally, yesterday we invited the Inquiry to hold what might be called some strand-tying closing submissions after the conclusion of Modules 2, 2A, 2B and 2C. Whilst it is important to have distinct modules for the UK, Wales, Scotland and Ireland, it will also be useful to have some opportunity to take a broader view of the evidence gathered in and heard in each of the modules, and to take a coherent view of the findings and lessons learned across the modules.

It was said yesterday that perhaps it’s too early to consider this sort of issue. As to that, my Lady, we say this: there are many advantages to the modular approach, we endorse it, but there are of course some disadvantages, and one challenge is how the Inquiry ultimately ends at a coherent role, and we say that actually, rather than being too early to consider how that is achieved, it is important that it is given some early consideration.

My Lady, unless I can assist further.

Lady Hallett: No, that was extremely helpful, Mr Jacobs. Thank you for both your submissions and for the suggestions, and we will pursue them where appropriate. I’m very grateful.

Mr Jacobs: Thank you.

Lady Hallett: Thank you.

Right, I think we now have Mr Mitchell KC attending by Zoom.

Submissions on Behalf of Scottish Ministers by Mr Mitchell

Mr Mitchell: Good morning, my Lady.

Lady Hallett: Mr Mitchell.

Mr Mitchell: My name is Geoffrey Mitchell. I appear today on behalf of the Scottish Ministers. That is, the body responsible for the direction and actions of the Scottish Government. We are grateful to have this opportunity to address the Inquiry this morning.

Our submission is a brief one, but we nevertheless thought it important that the Inquiry did hear from the Scottish Government, important for two reasons: important because the government played the central role in the handling of the pandemic in Scotland. And important, secondly, because the government is likely to be the main provider of documents in relation to Module 2A of the UK Inquiry.

My theme is one of commitment and co-operation. Commitment to the Inquiry process, and thereby to the people of Scotland; and co-operation and collaboration with the Inquiry team to assist it in the fulfilment of its goals.

On behalf of the Scottish Ministers, we would like to take this opportunity to confirm their commitment to co-operate fully with the Inquiry as it investigates the unprecedented impact and challenges posed by the pandemic on the Scottish people and on the wider UK population over the past 31 months.

Scottish Ministers are acutely aware – acutely aware – of the many types of loss suffered by the population over this period. They completely understand that the people of Scotland would like answers to the many questions that bear upon the government’s handling of the pandemic. The ministers are committed to that process.

They are equally committed to the Scottish Covid-19 Inquiry which will run parallel to the UK Inquiry. This dual commitment is a significant one, but it is one that the government has freely taken on. It has sponsored the setting up of the Scottish Inquiry, and it has sought core participant status in Module 1, Module 2 thus far, and Module 2A. It would not have done this if it did not feel it could fulfil its obligations.

Mindful of the timetable that my Lady has set for the Inquiry, we anticipate and feel confident that a spirit of co-operation and collaboration between the Inquiry and those representing the ministers will allow the government to fulfil its obligations to the Inquiry and to allow the Inquiry to report on time.

I and my team of counsel enjoy good working relationships with Mr Dawson and Mr Tariq from our time at the Bar, and lines of communication have already been opened up between the wider Inquiry team and those representing the ministers.

In addition, the memorandum of understanding which we have heard much about today is welcomed by ministers, designed as it is to avoid, so far as that is possible, duplication of effort.

In conclusion, as my Lady observed at the preliminary hearing for Module 1, we have an enormous task in front of us, but she may rest assured that the Inquiry will receive the full support of the Scottish Ministers in achieving that task, and completing it.

My Lady, I will doubtless have more to say at a later date in this module, but unless there is anything that I can assist my Lady with now, then that is all I propose to say, and I’m grateful for the opportunity to have made this submission.

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

I wholeheartedly welcome the expressions of commitment and co-operation. As you obviously appreciate and, by the sounds of it, your clients appreciate we’re only going to make a difference, both this Inquiry and the Scottish Inquiry, with the full co-operation and commitment that you have expressed on the part of co-participants and providers of documents.

So I’m very grateful, and so far I’ve been very impressed by the level of commitment and co-operation that’s been offered to the Inquiry, so I hope we can together make a difference.

Thank you very much indeed.

Mr Mitchell: Thank you.

Lady Hallett: I think that completes the number of people who wish to make any comments.

Do you have any closing remarks, Mr Dawson?

Response Statement by Lead Counsel to the Inquiry for Module 2A

Mr Dawson: I do have a few, my Lady.

I’m pleased to note that a number of the areas which were raised those who helpfully contributed acknowledged had been covered, to a certain extent at least, in my opening presentation.

There are a few matters on which I think I might helpfully add, and particularly mindful of the fact that there may be people watching who have not participated in previous hearings and so may not be entirely aware that some of these arguments have been ventilated before your Ladyship at the Module 1 and/or 2 preliminary hearings and a response given on behalf of the Inquiry. If I might take the presentations in turn. My learned friend Ms Mitchell made a number of submissions. There are three areas on which I think I can come back with what I hope are useful comments. The first relates to the submissions which she made on behalf of Scottish Covid Bereaved urging your Ladyship to consider greater involvement of core participants in the Rule 9 process. For the sake of those listening who may not have been involved in the hearings as much as Ms Mitchell has, similar submissions were made on behalf of the group which she represents, and indeed, as I understand it, a number of other groups, in particular at the hearing which your Ladyship presided over yesterday in Module 2.

I simply would adopt and repeat the submissions which have been made by Mr Keith in support of the Inquiry’s position, and I would also add that it is important, of course, in the interests of fairness, that there be consistency in the way in which that matter is approached across all of the modules.

So therefore it would be appropriate for me to adopt the same arguments which he has already advanced in front of your Ladyship in Module 2.

The other matters which are raised, which I think I can address: the important matter was raised by my learned friend about the need to be vigilant about potential areas of overlap, both in a conceptual sense but also in a practical sense, with the Scottish Inquiry.

On the subject of the overlap between the subject matter being looked at in each Inquiry, I would simply add that the terms of reference are what they are. As I set out in my main presentation, the statutory consultation exercise was gone through when our terms of reference were fixed. They include a requirement now for us to look into and report on devolved matters which were within the competence of the Scottish Government, as much as on other matters within the Inquiry’s remit. But I hope that those whom she represents are content with the commitment that we have given to take the obligation that we have to minimise duplication seriously. And as you know, my Lady, there are a number of discussions which are imminently about to be had with the newly constituted Scottish Inquiry about how best we might achieve that.

There is one further matter which I would wish to put on record. Ms Mitchell mentioned both the submission which she has made previously in connection with listening rooms, which of course has been noted and taken on board, but also on the subject of hearing venues.

As I have pointed out, the oral hearings in Module 2A will take place in Scotland in the autumn at some point of next year. Ms Mitchell and those instructing her have already been of considerable assistance in helping the Inquiry identify potential venues for hearings which might be suitable to their clients and more widely to the Scottish public, and I would wish to place on record that that spirit of collaboration is very welcome.

As far as the submissions made by Mr McConnell are concerned, I’m obliged for his clarification that matters which have been raised in the written material have, I think, all now been resolved to his satisfaction, and therefore I intend to add nothing further in connection with what he had to say on behalf of his clients.

As far as Mr Jacobs’ submissions were concerned, once again a number of the submissions which were made have already been subject of some detailed discussion in previous hearings. He made a point which differed slightly substantively, although aligned itself with Ms Mitchell’s point, about the need to consider further involvement of core participants in the Rule 9 process, and again I would simply align myself with the submissions made in that regard by my learned friend Mr Keith yesterday.

It is important also to note that the system which has been put in place, whereby updates will be provided to core participants, is designed, I think, precisely to try to achieve what it was that Mr Jacobs wanted, ie the ability of his clients and other core participants to participate meaningfully in the module, which of course is our absolute intention.

Another point which he made, again which I think was made and discussed in some detail at at least one previous hearing, related to the extent to which we need to look at the impact of Covid in various sectors in order to assess the reasonableness and timeliness of government interventions.

As I say, this is a point which was certainly raised and debated at the Module 2 PH yesterday, and I would align myself again with what Mr Keith had to say.

I think it’s fair to say that we will need to examine to an extent the impact of Covid and of the decisions made by the Scottish Government in order to be able to analyse and assess their effectiveness and appropriateness. It is, I think, a feature of the modular structure – which Mr Jacobs and the organisation which he represents otherwise considered to be the best way of structuring the Inquiry, and which has advantages, as I’ve set out in my main presentation – that a detailed analysis of the impact in various sectors will need to wait until later in the Inquiry.

We will focus now on the decisions which were taken on the basis of the information which was available to decision-makers at the time. We, within the Inquiry team, are of the view that the current arrangements strike an appropriate balance.

He made a further suggestion, and indeed has provided some written submissions, in connection with the role which the Scottish TUC played in advising government. He has asked for a Rule 9 to be issued to the STUC in that regard. That is a matter which will receive imminent consideration within the Module 2A team. We are certainly obliged to the information which the STUC has provided through the written note and Mr Jacobs’ submissions about their precise role, which is of considerable interest to us.

The final matter which he addressed, again which I’ll return to, for the purposes of clarification with those who were not at earlier hearings, is the subject of there being a possible further hearing to which core participants may make further submissions in early 2024. This, again, was a matter which was raised by the TUC at the Module 2 preliminary hearing yesterday.

Of course, again, my answer to that is simply to refer to the comments made by Mr Keith to the effect that the Inquiry team could not make submissions at this stage on the desirability or benefit of a further hearing at that time.

The matter was, however, also covered by Mr Keith’s general comment to the effect that there will be further reflection within the Inquiry team on points made by core participants at the Module 2 preliminary hearing and indeed today.

As I say, the same also goes for the points helpfully raised by the core participants in writing and at this hearing for Module 2A.

As far as Mr Mitchell KC’s submissions are concerned, I don’t think I have anything that I can usefully add at this stage, save to acknowledge our gratitude for the spirit in which the Scottish Ministers have intimated that they intend to participate in this Inquiry.

Thank you.

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

Right, well, that now completes the first preliminary hearing into Module 2A. I will give all the submissions very careful consideration. Even if they were similar submissions to ones made yesterday, they’re important and they all deserve proper consideration in each module, and that’s what they will get.

Unless anybody wishes to stay for this afternoon’s hearing into Module 2B, Cymru, Wales, thank you very much for attending and that completes this hearing.

Thank you all.

(12.10 pm)

(The short adjournment)