Transcript of Module 2A Preliminary Hearing on 21 March 2023

(10.30 am)

Baroness Hallett: Good morning. This is the second preliminary hearing for Module 2A, the module which is focused on decision making in Scotland. It is being held in the week that also marks the third anniversary of the imposition of the first United Kingdom-wide lockdown. That is a date that has huge significance for so many people and it is important that we recognise that fact.

Today’s hearing, there are a number of issues to be considered and Mr Dawson KC, counsel to the Inquiry for this module, will soon be setting out in far more detail the issues that we have to consider.

I have received written submissions from several Core Participants, including Bereaved Families in Scotland, and I wish to thank them for their extremely helpful suggestions and approach they have adopted.

I think it is best if we now move on to Mr Dawson. Your opening remarks, please.

Mr Dawson: Good morning, my Lady. Can you hear me clearly?

Baroness Hallett: We can, thank you.

Submissions by Mr Dawson KC

Mr Dawson: Thank you very much.

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 friend Usman Tariq, of the Scottish Bar, who is with me in person, and Stephanie Painter and Bethany Condron of the English Bar, who are with me, all part of the counsel team in Module 2A, the focus of which is and will be on Scotland.

By way of remainder for those who are listening, Module 2A will look at core political and administrative decision making relating to the management of the pandemic in Scotland, primarily of the Scottish government. The first of this module’s preliminary hearings took place on 1 November last year. This is the second such hearing. This week marks the third anniversary of the announcement of the first UK lockdown, by then Prime Minister Boris Johnson, on 23 March 2020, by which time the death toll in Scotland had already reached 14. By that time the Scottish government had already told cafes, pubs and restaurants to close three days previously. On that date, Scotland’s then chief medical officer, Catherine Calderwood, said, “This is no longer a rehearsal for something that might happen.” The Scottish Parliament closed the next day, and on 25 March 2020, the First Minister confirmed that the Scottish government would establish a Covid-19 advisory group to supplement the advice it received from the UK-wide SAGE, bodies whose decision making will receive close scrutiny in Module 2 and in this module, 2A.

Two years ago this week the Office for National Statistics’ test positivity figures showed that while infections had levelled off in England, Wales and Northern Ireland, Scotland’s infection rate had increased over the previous two weeks, such that Scotland had, at that time, the highest Coronavirus infection rate in the UK. It was estimated that one in 240 people in Scotland were infected. As was the case at the last preliminary hearing, we know that there are 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, and that there will be others, including Core Participant representatives, who have had greater contact with the work of the Inquiry. Some have attended or even played an active part in the recent preliminary hearings in Modules 1, 2 and/or 3. This presentation attempts to avoid unnecessary repetition for this latter group, but also requires to provide what is hoped will be useful information about progress for the former.

Representatives of the now eight Core Participants in Module 2A are in attendance at this hearing remotely, mostly counsel and solicitor teams. I will have more to say about Core Participants, who they are and their role in this module in due course.

I and other members of the Module 2A team are, on this occasion, also participating remotely from an office in Edinburgh. Though this means that we are, to an extent, throwing ourselves at the mercy of the technology, like others, may I make clear to your Ladyship that our physical presence in Scotland is more than symbolic. The Inquiry team involved in the preparation and delivery of Module 2A operates in Scotland. With me today is my legal solicitor for this module, Amy Cornelius, who is based in Edinburgh. She and her team are able to have regular face-to-face contact with Core Participant representatives and other interested parties, as well as with the assistance of technology. This Inquiry’s presence in Scotland is also facilitating co-operation with the Scottish Inquiry. In-person meetings between the two Inquiries have taken place and will continue to do so. The teams of both Inquiries are continuing to develop a set of operational arrangements in order to deliver the commitments of the memorandum of understanding, to which I will return.

I and my junior counsel, Mr Tariq, are Scottish advocates who are based in Scotland. Other key members of our planning team are also based in Scotland. The Inquiry has office premises which it uses in Edinburgh. Many of those who are also involved in the work of the Inquiry, in this module, visit Scotland for meetings and other work on the business of the Inquiry. All of those who are involved in this module are working on familiarising themselves with the issues which faced Scotland in the pandemic, and the investigation of the Scottish decisions which this module involves, all within the framework of the larger UK Inquiry, looking into the full remit of our terms of reference. Those listening should be in no doubt that this Inquiry operates in Scotland, with Scotland and for Scotland. After my presentation on behalf of the Inquiry there will be an opportunity for those bodies which have been designated as Core Participants for this module, if they wish, to make oral submissions. Written submissions raising a number of useful and important points have been received from four of the Core Participant groups, for which we are most grateful.

I understand that it is intended that such oral submissions will be made remotely by the following groups and in the following order. Firstly, Scottish Covid Bereaved, represented by Ms Mitchell KC. Secondly, Disability Rights UK & Inclusion Scotland, represented by Mr Friedman KC. Thirdly, the Trades Union Congress and the Scottish Trade Union Congress, represented by Ms Gallagher KC and, finally, the Scottish Ministers, represented by Mr Mitchell KC. After these submissions have been heard, I may have some comments to add at the end of the hearing on behalf of the Inquiry, though I will attempt to address a number of the points which have been raised by Core Participants in advance during the main body of my presentation. I intend to address the following matters in my presentation. Firstly, practical arrangements for this hearing. Secondly, the progress in the gathering of evidence for Module 2A since the last preliminary hearing in November, including Rule 9 requests and expert evidence. Thirdly, Core Participants. Fourthly, planning and timetabling for the remainder of the module, with focus on the period between now and the lead up to the oral hearings, with reference to various planned events. Fifthly, the preparation for the conduct of the oral hearings, including witness proposals and Core Participant engagement in oral hearings, as well as opening and closing statements. Sixthly, I have a few words to say about the scope of Module 2A. Seventhly, I will address you, my Lady, on co-operation with the Scottish Covid-19 Inquiry, and finally, before concluding, eighthly, I have some comments to make on the listening exercise, which this Inquiry now calls Every Story Matters. So, before turning to the main body of my presentation, may I commence by setting out the arrangements for today’s hearing. These proceedings are being recorded and live streamed to other locations. This has certain benefits. This allows as many members of the public and representatives of organisations, including Core Participants, as possible to follow the proceedings and gain an understanding of the module and the work which has been, is being and will be undertaken within it. It has the disadvantage of discussions not being able to take place in person among the legal teams of the Inquiry and the Core Participants. In order to try to address this, specific contact has been made with representatives of the Core Participants, both at counsel and at solicitor level, to try to ensure that lines of communication are as open as possible.

A transcript of what is said at the hearings will be made publicly available on the Inquiry’s website in due course.

As is always the case at hearings like this, matters may be mentioned of a potentially sensitive nature. To cater for this, the broadcasting of the hearing via the YouTube feed will be conducted with a three-minute delay. That 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 this morning, 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. To turn then to progress in the gathering of evidence for Module 2A since the last preliminary hearing and specifically to progress made with the Rule 9 requests. Formal requests for evidence have been issued relating to the matters to be covered in Module 2A pursuant to Rule 9 of the Inquiry Rules 2006. These are a combination of Rule 9 requests which have been issued by Module 2A itself and Rule 9 requests which have been issued in conjunction with other modules, where the identity of the recipient means that they are likely to be able to provide useful information relevant to more than one module.

Just under 100 requests with relevance to Module 2A have now been sent out. Amongst the Rule 9s which have been prepared and sent out by the Module 2A team are requests which have been sent to the Scottish government, a number of its specific directorates, and other public bodies in Scotland, including NHS National Services Scotland and Public Health Scotland, who are Core Participants in this module. Such public bodies include those with responsibilities in the areas of local authority, children, transport, criminal justice and human rights in Scotland, all of which are relevant to the module’s scope. As matters may arise within this module which relate to the activities of the Secretary of State for Scotland, in particular in relation to matters which are within the legislative competence reserved to the UK Parliament, a request has been sent to his office. Core Participants Scottish Care and the STUC have received such requests for Module 2A. The National Police Chief’s Council have received a request from Module 2A in conjunction with other modules. Other national organisations have also received such requests and issues have been put to them which seek information, including important statistical information relating to Scotland and hence to Module 2A.

These requests have sought extensive documentation relating to the scope of the module. In some cases, corporate statements have been sought which seek information about the structures of key organisations in decision making in the pandemic, as well as broad information about their approach. The information provided in these corporate statements will form the basis of more specific individual Rule 9 requests made to individual witnesses in due course. Rule 9 requests have also been issued seeking input on various matters, such as impact or scientific information, to various representative organisations, including those which represent at-risk and/or vulnerable individuals. Many of these are organisations which operate within Scotland and some are organisations with a national reach, including Scotland, which have been issued in conjunction with other modules. These include Core Participants Scottish Covid Bereaved and Inclusion Scotland. Representative groups which have been contacted represent the interests of other groups, including older people, children and young people, women, ethnic minority groups, disabled people and those with learning disabilities.

Rule 9 requests have also been sent to individuals, including the members of the Scottish government’s Scottish Covid-19 Advisory Group, which group also received an organisational Rule 9 request. Responses have been received from a number of these organisations who have been sent Rule 9 requests, the details of which have been intimated to Core Participants in their regular detailed monthly updates. The fruits of all of these document recovery exercises are being processed in terms of the Inquiry’s protocol on documents and its protocol on the redaction of documents, as well as being analysed by the Module 2A team in terms of the scope of the module. At the first preliminary hearing in November last year a predominant theme of submissions made in writing and orally by Core Participants, who are also going to be material providers, related to the need for a clear plan as to when and how document requests would be made and the need for careful coordination of that process in order to make sure that it worked efficiently. Members of the Module 2A solicitor team have met with multiple material providers, including Core Participant material providers, in order to work this through. The result of those interactions has been that documents and corporate statements relating to the broad operation and position of the material providers are starting to be received by Module 2 from important organisations and individuals.

Meetings which have taken place have been with organisations including COSLA, the Children and Young People’s Commissioner Scotland, the Scottish Human Rights Commission, the Crown Office and Procurator Fiscal Service, the Office of the Secretary of State for Scotland, the NPCC and the STUC, who have produced their statements already. At the last preliminary hearing I made reference to documents which had been provided to the Scottish Inquiry and to us by the Scottish government, and indicated an aspiration that they might be able to be analysed and released to Core Participants in this module during 2022. These materials have been considered, although they had previously been redacted by the Scottish government, then they – these documents having previously been provided for the Scottish Inquiry. This Inquiry has, as I have said, issued a redaction policy outlining how it, and not the material providers, intends to redact documents. Therefore, those initial documents were not provided to Core Participants as they had not been received in and assimilated in conjunction with that policy.

In any event, many of these documents we found were not relevant to the matters which we will be looking at in Module 2A. In effect, the documents relevant to Module 2A have been re-requested and will be assimilated in accordance with the Inquiry’s redaction and document review policies and practices, in the same way as other documents received in due course.

In order to ensure that nothing relevant is missed, the original bundle is still being assessed in order to ascertain what, if anything, may be of relevance to this module and what, if anything, may be relevant to other modules of the Inquiry to be held in due course.

In the meantime, the Scottish government has produced its first corporate statements and exhibits specifically responding to a Module 2A Rule 9 request. These materials are being analysed at present.

The Scottish government is in the process of preparing further responses to other Rule 9 requests which were made to specific directorates within it. Timescales for responses to these requests are either imminent or being managed between the Inquiry team and the Scottish government’s representatives.

The Scottish government is also continuing to share the document with the UK Inquiry which it is providing to the Scottish Inquiry. It is also being analysed – these documents are also being analysed by us for their relevance to matters being looked at in Module 2A. Any material produced in that way, whether relevant for Module 2A or not, will also be available for other modules of our Inquiry, both now and in the future.

All of this work will lead to documents received from the Scottish government via any of these routes which are relevant to Module 2A being disclosed to Core Participants in this module in due course. At the last preliminary hearing submissions were made by the TUC and others in connection with the importance of assessing the impact of the pandemic and, indeed, the impact of measures taken by the government in Scotland to seek to reduce transmission, in particular, on various sectors of society, including those at risk, the vulnerable, including minority ethnic groups. We agree that, as part of our assessment of the appropriateness of the high level of political decisions and measures taken by the government in Scotland to control the pandemic, it will be necessary to assess the extent to which appropriate account was taken of the impact which existing measures were having or had had on transmission and outcome.

As we intimated at the last preliminary hearing, detailed consideration of the impact of the pandemic on specific areas of national life will come in subsequent modules. However, as a basis for our understanding of the impact of the decisions with which this module is concerned, we have sought input so far from 51 organisations which are representatives of different sectors of Scottish society, seeking their views, amongst other things, on the impact on these sectors of the pandemic but also the impact of those decisions. Statistical evidence, both in the form of raw data and also expert analysis of it will, we anticipate, also provide us with important insights into these issues. In our counsel to the Inquiry note issued to Core Participants in advance of this preliminary hearing we asked Core Participants to propose the identities of organisations to which further Rule 9 requests might be issued. Some have very helpfully done so. Including Scottish Covid Bereaved and the TUC, STUC. Some of these are receiving active further consideration but I can provide the following information which I hope to be relevant to the suggestions which have been made:

The Core Participants have provided details of experts in various fields, either based on the fact that they provided advice for Scottish government or on the basis that they have provided commentary on the political decisions taken to control the pandemic in Scotland.

These suggestions are all helpful and will be or have been considered. The details of their roles, relevant publications and the explanations as to what the Core Participants think these potential witnesses might add to the module are all particularly helpful. Some, like Professor Stephen Reicher have already been contacted by the Inquiry for a Rule 9 response. Similarly, suggestions have been provided as to ministers who might be contacted for individual Rule 9 responses in this module. An analysis has already been done by the module team of key ministerial decision makers within and advisers to Scottish government, which has been cross-referenced with these helpful CP proposals. As regards organisations which may be able to provide information about the impact of political decisions on ethnic minorities and other matters which may fall within the scope of this module, various helpful suggestions have been made by our Core Participants about groups that might be contacted in this regard. Module 2A has already sent Rule 9 requests to the Coalition for Racial Equality and Rights, a group which aims to tackle structural racism in Scotland, and Black and … [Minority] Infrastructure Scotland, a Scotland-wide umbrella body for ethnic minority voluntary organisations. Both groups were represented on the Expert Reference Group on Covid-19 and Ethnicity, established by the Scottish government, which was disbanded in November 2020. Both groups have published in connection with aspects of the pandemic and its effects on ethnic minority groups in Scotland, which suggest to us that they may well be of assistance to the Inquiry in connection with this important aspect of our module. A similar request has been sent to the Runnymede Trust, a leading think tank on matters relating to race in the UK. That organisation publishes materials relating to Scotland, and so we believe also that it may be able to contribute to the Inquiry’s work in this part of this module. Scottish Covid Bereaved have made the helpful suggestion that we seek input from various organisations in Scotland which work on behalf of refugees and asylum seekers, including Refugees for Justice, which we have not done to date. That is an organisation, as we understand it, of asylum seekers and refugees which was formed in the aftermath of the Park Inn Hotel tragedy in June 2020, where an asylum seeker was shot dead by police in central Glasgow.

Scottish Covid Bereaved make the valid general point that they consider it to be of particular importance that this Inquiry looks at issues relating to immigration and asylum, given the fact that these are generally reserved matters and thus may well fall beyond the scope of the Scottish Inquiry. This point is, in our view, well made. The issues of how these matters fall within the modular planning of the Inquiry as a whole is currently receiving active consideration by the Inquiry team. We will, of course, keep Scottish Covid Bereaved and other Core Participants informed about progress in this regard. Similar considerations apply to suggestions helpfully made about charities which work in the field of homelessness in Scotland. The other suggestions made by Core Participants are being actively considered. For some, whose area of interest is already being covered by other similar organisations, it may be that the possibility of contacting them will be reviewed once those other organisations have responded and an analysis can be undertaken of whether any additional material is required. This appears to us to be the best way to balance thoroughness and avoid unnecessary expense in investigation, as your Ladyship requires to do.

The point appears to be well made, in our view, by the STUC, where they say that some of the national organisations who have been contacted by the Inquiry to this point may or may not be able to provide adequate information about Scotland or information specific enough about certain at-risk groups for our purposes in this module. We accept the possibility that this assertion may prove to be right and we maintain an open mind to contacting other groups if the responses which we do receive prove inadequate for our purposes on these or other grounds. Examples of suggestions which have been helpfully made where we await the response of other groups include those made in the fields of women’s rights, LGBT Youth Scotland, YouthLink Scotland, Alzheimer Scotland, and Care Home Relatives Scotland. I would like to make clear, however, both that these suggestions which have been made by Core Participants are very helpful, and that work has already been done on finding out more about these suggested organisations to the extent that they were not familiar to us already.

As far as expert evidence is concerned, draft expert reports which cover material relevant to Module 2A have been received from experts, firstly, in the field of political structures of devolution within the UK and mechanisms for inter-governmental decision making between the UK government and the devolved administrations during the pandemic, from Professor Ailsa Henderson from the University of Edinburgh, and, secondly, international data relating to the pandemic from Professor Thomas Hale from the University of Oxford. These are receiving consideration from the Inquiry legal teams and from the modern Module 2A legal team insofar as they relate to matters pertinent to its scope. A further report with some relevance to Module 2A instructed by Module 2 has been received concerning the decision-making structures of the UK government in an emergency. The instruction of a similar report relating to the Scottish government is currently actively being considered. A report has been instructed but not yet received on the access to and use of data by the UK government and the devolved administrations during the Covid-19 pandemic from Gavin Freeguard, former programme director and head of data and transparency at the Institute for Government. It is due to be received in draft form this month. On receipt, we will analyse its content for the extent to which it covers Scottish issues potentially within his expertise arising in this module. It will be necessary for us to adduce expert evidence on this important subject, be it from Mr Freeguard or otherwise.

Following disclosure of the draft expert reports which are relevant to Module 2A, Core Participants in this module will be invited to propose points of clarification or new matters to be raised with each expert. Further information about that process and its timing will be provided to Core Participants in due course. In the preliminary in Module 2 you heard submissions my Lady about the need for an expert to deal with the issue of structural racism and discrimination. In your note dated 9 March of this year you have dealt with submissions on this subject between paragraphs 14 and 37. Like the scope of Module 2, paragraph 3 of the outline scope for Module 2A indicates that in this module we will address the identification of vulnerable and other at-risk groups in Scotland and the assessment of the likely impact of the contemplated non-pharmaceutical interventions on such groups in light of existing inequalities.

In your ruling of 9 March you made clear that in Module 2A, as in other Module 2s, requests for evidence from relevant bodies or decision makers and those issued to representative organisations have sought information relating to the extent of pre-existing racism or other discrimination for vulnerable or at-risk groups as part of the exercise of investigating the extent to which and the reasons why those in those groups suffered a greater impact as a result of political decisions made around the management of the pandemic. At paragraph 32 of your ruling you concluded, my Lady, that it would be appropriate for an expert or experts to provide an opinion on the issue of pre-pandemic structural racism, with the caveat at paragraph 33 that it is not within the remit of the Inquiry to conduct an inquiry into institutional racism. At paragraph 37 you directed that the Inquiry team should look to the same issues relating to other forms of pre-existing discrimination. Our proposal to you, my Lady, is that you adopt the same approach to the issue of pre-existing structural racism and other forms of discrimination in Scotland. We wish to emphasise, my Lady, that this is an issue to which we are very alive in this module. It is, as I have said, part of our outline scope, as it is for Module 2. We are also alive to the fact that it gives rise to issues which, in our view, will merit separate and particular attention from a Scottish perspective. This may arise from the different ethnic groups in Scotland, the different proportion of the Scottish population made up by people from ethnic minority backgrounds when compared to the rest of the UK, their particular circumstances and vulnerabilities, or the particular affects of infection on them. The different effects of the pandemic on this and other at-risk groups is recognised in chapter 7 of the Scottish government’s report on Scotland’s Wellbeing: The Impact of COVID-19, which states that: “The pandemic has produced disproportionate impacts across a range of outcomes for a number of groups. These include households on low incomes or in poverty, low-paid workers, children and young people, older people, disabled people, minority ethnic groups and women. These groups also overlap, which may compound the impact its for some.” As I have indicated, the impact in this area has already been addressed in Rule 9s which have gone out to relevant organisations we believe with knowledge of the position in Scotland. Each of the directorates of the Scottish government and the Scottish government itself have been asked about what regard was had to groups with protected characteristics and other at-risk or vulnerable people, including ethnic minority groups, both in making decisions about non-pharmaceutical interventions and also in enacting legislation and regulations. The Rule 9 sent to the Scottish government’s Equality, Inclusion and Human Rights Directorate included more detailed questions about consideration of protected characteristic groups. Other individuals and groups outside of Scottish government, including the Scottish Covid-19 Advisory Group, the Chief Medical Officer for Scotland, the Children and Young People’s Commissioner Scotland, the STUC, COSLA, NHS NSS and Public Health Scotland have been asked what information they compiled relating to those with protected characteristics and other at-risk or vulnerable groups, what information or advice they provided to the Scottish government in that regard, and details of any other communications they had with the Scottish government about these groups. Whether a thorough investigation of the impact of high-level political decision making on these outcomes will be assisted by an expert instructed in common with other modules, or whether it will require an expert who looks at the particular Scottish considerations will be a matter which will be given our careful attention. Thus, we invite that you direct, as in Module 2, that expert evidence should be commissioned in connection with pre-existing structural racism in Scotland and that consideration be given by Module 2A Inquiry team as to whether this should be achieved by the instruction of the same expert or experts as will be instructed for Module 2 or a separate expert or experts. A similar direction relating to the issue of other forms of pre-existing discrimination can also be made, we say, with a similar direction as to consideration being given to the identity of the expert or experts who might opine on Scottish issues in that regard. In general terms, experts have thus been instructed to provide reports on matters which stretch across modules where appropriate. We are, however, alive to the possibility that particular considerations arise in the Scottish context which may, for various reasons, require the instruction of separate experts, either because of those different considerations and/or the limitation of the ability of cross-modular experts to opine on them.

So far the majority of the helpful suggestions which have been made by Core Participants have been for factual witnesses, whom they say the Inquiry should approach for evidence.

We would be happy to receive informal suggestions from Core Participants as to experts whom they suggest the Inquiry should consider instructing for expert input into Module 2A, either by way of an area which may merit separate consideration in Scotland and/or by way of specific individuals who might be suitably qualified to perform that role.

These will, of course, be considered in accordance with the obligation that we have to consider fairness and economy under section 17 of the 2005 Act.

My Lady, I now intend to move on to saying something about my next section, which relates to Core Participants.

Since the first preliminary hearing in November, Core Participants status for Module 2A was granted jointly to Disability Rights UK and Inclusion Scotland on 16 November of last year.

In your determination granting their application you reiterated, my Lady, the importance to the module of the investigation to the extent to which the Scottish government considered at-risk people, including disabled people, when making decisions in response to the pandemic.

You specifically repeated your ongoing commitment, as set out in the terms of reference and indeed your opening statement, that inequalities will be at the forefront of the Inquiry’s investigations.

Both organisations are represented at this hearing by Mr Friedman KC, who has submitted a helpful and full submission about his clients’ aspirations and suggestions for the module, which have been and continue to be taken into account and acted upon. In addition, on 10 February of this year, your Ladyship issued a supplemental determination confirming that the designation of the TUC and the STUC which had previously been made was a joint designation, as more detail about the particular roles, constitutions and practices of those bodies became apparent. They are both represented at this hearing by my learned friend Ms Gallagher KC, who has also provided a helpful and full written submission. At the preliminary hearing in November last year the Core Participants rightly wished to be appraised as to how the Inquiry intended to keep them informed about the progress of the Inquiry team in this module. The legal team has provided monthly updates in December of last year and in January and February of this year. These have provided detailed explanations of the work which has been done and the progress which has been achieved in this module over that period.

As I have said, those Core Participants who are also material providers, have been consulted with by the Inquiry staff around the way in which the Inquiry wishes them to produce their documents as they requested should happen at the time of the last preliminary hearing in November. I will come to timetabling in a moment, which will include certain information specifically relevant to Core Participants in this module, but I would like to make it clear to the Core Participants that the preliminary hearings are not the only opportunity for them to contribute and make suggestions about the operation of this module. Lines of communications have been established, in particular at solicitor and counsel levels, and we invite the representatives of Core Participants to use those methods to approach us with suggestions as to how they might contribute further to the process. To move, then, to planning and timetabling for the remainder of the module, and specifically the period between now and the lead-up to the oral hearings.

At the last preliminary hearing, Core Participants were understandably keen that we should set out our plan as to when the public hearings in Module 2A would take place. A particular consideration which applied to Scotland, the Scottish Core Participants, and the Scottish public, relates to the coordination of the hearings of the two Inquiries so as to enable engagement with each. For various reasons, the timetabling of each has a fresh complexion. Necessary changes to the timetabling for Module 1 in our Inquiry have resulted in this Inquiry’s overall timetable being altered from our initial projections. Your Ladyship made rulings regarding the timetabling of Modules 1 and 2 on 17 February and 9 March of this year respectively, which rulings can be viewed on the Inquiry website. The need for a clear planning is, however, appreciated. Therefore, subject to submissions which you may hear from Core Participant representatives, we propose that the Module 2A evidential hearings should commence on 15 January 2024. It remains our plan that those Module 2A hearings will last for three weeks. More precise plans as to which witnesses will give evidence on which days will be announced in due course, when further consideration and analysis of the evidence being gathered by the Inquiry permits.

The UK and Scottish Inquiry teams have shared their respective timetables, including the proposed dates for the Module 2A hearings in January 2024. As far as the UK Inquiry team is aware, the Scottish Inquiry’s current plan means that it will not sit at the time of these planned Module 2A substantive hearings. The teams of both Inquiries continue to have regular communications to monitor the development of their respective timetables.

As we intimated at the last preliminary hearing, to facilitate access for and engagement by the Scottish public in those hearings, the public hearings in Module 2A will take place in Scotland. The Inquiry is looking into possible hearing venues in Scotland. I can assure you, my Lady, and in particular those who represent vulnerable or infirm groups, that those discussions have been giving and will give careful consideration to the need for minimum inconvenience for and any particular needs of those who may wish to attend those hearings. For those who cannot or did not wish to, the intention is that those hearings, like this one, will be live streamed online and that transcripts will be made publicly available via the Inquiry’s website. The Inquiry will also upload recordings of hearings to the Inquiry’s website and YouTube channel.

Before that time, the work of the Inquiry in preparation for those hearings will continue. There are a number of other planned events in order to maximise the involvement of Core Participants, and ultimately to assist in our fulfilment of our terms of reference. Before outlining our current thinking in that regard it may be worth pointing out that we consider it inevitable that there may be slight variations in the way in which we propose that each Module 2 and its submodules will be conducted, both with regard to the issues which each module and submodule seeks to resolve, which differ in each of the four nations of the UK, and the way in which the procedure might best serve each of these issues being properly and fully addressed. There may be a number of legitimate reasons for this, such as the timing of the hearings, practicality, the different issues which fall to be addressed in each part of the UK, both generally and at the hearings, the number and variety of material providers and decision makers, the volume of material, and the number and interest of Core Participants, which are different in each of the four submodules.

Though such differences may occur, consistency in the treatment of each of the four nations of the UK is, in our submission, achieved by the broad consistency of the outlined scopes in each and the commitment in each to important underlying principles, such as the need to permit participation in the process by those who have been accorded Core Participant status, which is reflected by each module, providing means by which Core Participants may participate beyond what is laid out in the Inquiry Rules 2006. In this module it is intended in the first instance that we will distribute a list of issues which we intend to address in Module 2A. In the first instance we propose this will be issued to Core Participants, who will be invited to provide comments and suggested alterations and additions to them. The list of issues will be a refined version of what issues we think arise for determination by the Inquiry in Scotland under each section of the outline Module 2A scope, the various parts of which were set out by me at the last preliminary hearing and the terms of which are available publicly on the Inquiry website. In paragraph 13 of your ruling of 9 March, issued after Module 2, you directed that the proposed issues for that module should be issued to Core Participants for their comment by 28 April of this year.

We propose that you should direct that this should happen for Module 2A and that a list of issues should be issued to Core Participants by 12 May of this year. Suggestions made by Core Participants will be considered by the Inquiry team and the list of issues will be extended and amended accordingly.

Over this period and going forward, documents which have been assessed as being relevant to the scope of Module 2A and which have gone through the Inquiry’s redaction process will be issued to Core Participants via the Inquiry’s Relativity system. These will, in due course, include corporate statements and associated exhibits as well as relevant documents which have been disclosed. In order to speed this process up, the Inquiry is now in a position to use an automated process of redaction of names which have been identified as irrelevant to the Inquiry’s investigations. Over this period the Inquiry will continue to assess the content of corporate statements and associated documents. Depending on the content of these, it may be that further Rule 9s are issued to witnesses or additional corporate statements sought thereafter in preparation for the hearings commencing in January of next year.

This process will also inform the compilation of individual Rule 9 requests which we anticipate will start to be sent out in June of this year in this module.

It is hoped that, as was the case in our organisational Rule 9s, this approach will enable the matters covered in the Rule 9s to be better informed, more focused, thus easier for the witness in question to engage with and more likely to get to the nub of the issues with which this module is concerned. In addition to the documents which will be released to Core Participants periodically, individual witness statements will be released to Core Participants in due course to enable preparation for their input into the hearings in January 2024. Depending on timing and the content of each individual statement, it may be that additional matters will be put to individual witnesses, to which responses will be collated and distributed to Core Participants. For the sake of clarity, and in response to a point made orally by Scottish Covid Bereaved at the Module 2 preliminary hearing, it is intended that individual Rule 9 requests will be issued in Module 2A to the First Minister of Scotland, the Deputy First Minister and to the Secretary of State for Scotland and to multiple cabinet secretaries of the Scottish government who played roles in high-level political and administrative decisions with which this module is concerned.

As I said, Rule 9 requests have already been issued to multiple Scottish government directorates. Core Participants will be kept informed as to progress in monthly updates. In addition, a proposed list of witnesses for the oral hearings will be issued to Core Participants in due course. Thus, as far as the preparation for and conduct of the oral hearings is concerned, I have something to say about witness proposals and Core Participant engagement in the oral hearings. As far as questions for witnesses are concerned, Core Participant representatives are aware of the provisions of Rule 10 and the procedures laid out there for the questioning of witnesses, which will be primarily conducted by Inquiry counsel, and the opportunity which is set out there for applications to made for questions to be asked by Core Participant representatives, in particular under Rule 10(4). In addition to the procedures laid out there and to the proposed list of witnesses for the Module 2 evidential hearings, which will be intimated to Core Participants, it is intended that Core Participants will be provided with an opportunity to suggest areas and lines of questioning which should be covered with each witness.

In your ruling issued after the Module 2 preliminary hearing, your Ladyship described an informal route by which Core Participants representatives could seek to persuade the Inquiry team that there are areas or issues which are of such centrality that they must be raised in the course of a witness’ evidence. This suggestion had been raised at the hearing by Ms Mitchell KC for Scottish Covid Bereaved, amongst others. In this module we also intend to adopt a similar informal approach among the counsel teams, details of which will be intimated to Core Participants when we get nearer to the time of the hearings. Though the various procedures which we currently have in mind, as I have outlined, are all designed to try to maximise progress and Core Participant involvement in the Inquiry’s work throughout, and not just when hearings are held, we propose a third preliminary hearing for Module 2A be held in late October or early November of this year, with the precise date to be fixed in due course. At that hearing, a full update can be given on progress and the plans for the evidential hearings which will follow around two to three months later.

As far as opening and closing statements are concerned, the Inquiry Rules also include provision under Rule 11 for Core Participant legal representatives or, indeed, unrepresented Core Participants to make opening and closing statements.

As in other modules, the intention in Module 2A is that counsel to the Inquiry will make an opening statement at the commencement of the public hearings. It is unlikely that there will be a closing statement. Core Participants or other legal representatives who wish to make opening and/or closing statements will, of course, be permitted to do so.

However, counsel to the Inquiry will be inviting the Chair to impose strict time limits on these in order to ensure maximum efficiency in the limited hearing time.

As I have set out, the approach to Core Participant participation in this module is to seek to facilitate it throughout, as opposed to in the limited circumstances which are permitted by the rules. It is hoped that by the time of the hearings, the positions of the Core Participants and those whom they represent, as well as the issues which they would like to have ventilated, will be well known and will have been integrated, so far as it is considered appropriate to do so within the Inquiry’s investigative procedures.

My Lady, I have a little to say in response to some comments made in the Core Participant submissions – written submissions about the scope of Module 2A. A good deal of time was spent at the first preliminary hearing last year talking about the scope of the module. I do not wish to rehearse the detail of that submission now but reiterate that the scope was then, and remains, reactive to the evidence which we have uncovered and to the helpful suggestions of Core Participants. It will be expanded upon and developed in the list of issues to which I have already made reference. Matters which relate to scope have been raised in the notes produced by Core Participants for the purposes of this hearing, including the issue of structural racism and other structural inequalities in Scottish society, the particular threats posed by Covid-19 to the disabled community in Scotland, the extent to which the views of disabled groups were taken into account during political decision making in the pandemic in Scotland, and others. I have touched upon the approach being taken to a number of these areas already. They are all helpful and are all being considered alongside the list of issues which will, as I say, be released to Core Participants in early course.

As we said at the first preliminary hearing in this module, 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 and to uncover wrong decisions and any significant errors of judgments, and to do what we can to make sure lessons may properly be learned in the interests of the Scottish public as a whole. Though areas of specific interests to our Core Participants, in particular the impact on certain at-risk and vulnerable groups, are an important part of our remit in this module, which is largely why these groups have been accorded Core Participant status, their specific and important interests form part of this wider remit. To move then, my Lady, to my next topic, which is co-operation with the Scottish Covid-19 Inquiry. Another matter of priority for Core Participants, understandably, at the last preliminary hearing in November last year, was to receive some clarity as to how the Inquiry intended to go about fulfilling its obligation to co-operate and minimise duplication with the Scottish Inquiry.

At the preliminary hearing for Module 2, Scottish Covid Bereaved’s counsel, Mr McCaffery, sought confirmation from the Inquiry that it remained truly independent from the Scottish Inquiry. As you did during the course of the Module 2 hearing, my Lady, the Inquiry team working on this module would wish to reiterate the investigation of the matters falling within our remit and the ultimate discharge of the terms of reference with which we are concerned, is being and will be conducted entirely independently.

We decide independently what information we wish to see and from whom, what questions we ask and to whom, in order fully to discharge our remit. Material is and will be analysed independently, both at the Scottish Inquiry and of the parties involved in making a contribution to this Inquiry. Ultimately, the analysis and the assessment of the evidence which we have gathered in both written and oral form will be assessed entirely independently by you, with the support of your Inquiry team.

I gave a commitment to that effect at the first preliminary hearing, and that has been and will continue to be the case, as our separate terms of reference demand.

However, those terms of reference also require that we seek to minimise duplication of investigation, evidence gathering and, ultimately, reporting, and impose a requirement to liaise with, in our case, the Scottish Inquiry before embarking upon investigations.

Thus, in the exercise of our independent obligation to investigate, analyse and report, we are obliged to take these steps in order to work efficiently and have regard to avoiding unnecessary public expense. At the last preliminary hearing, Core Participants were rightly keen that we provide an update as to how that obligation was being and was planned to be observed. The obligation extends not only to a requirement to seek to minimise duplication, but also to set out publicly how we intend to do so. At that time we were able to indicate that a memorandum of understanding was in draft form and was being discussed by the two Inquiries. At that time progress with that and other related practical arrangements was on hold due to the resignation of the former Chair of that Inquiry and the fact that a new Chair had only recently been appointed. In addition, certain key positions within that Inquiry required to be filled before the arrangements between the two Inquiries could be taken forward. I am pleased to say, my Lady, that the final memorandum of understanding was signed by the secretariats of each Inquiry on 23 February of this year. A copy can be viewed on our website.

This is an important document both for this module and for modules to come. As it is necessary for it to be able to have application across a number of different common areas which will be investigated by both Inquiries and not just the political decision making being addressed in this module, the document has been drafted in a way such that it can be applied across the whole of the two Inquiries, taking into account the fact that each Inquiry has the right to choose, independently, how to structure and conduct the discharge of its own terms of reference. This is not to say that it does not contain a number of important practical commitments. It does. For example, at the last preliminary hearing, Core Participants who are also material providers were keen that clear structures were put in place so that efforts made to respond to Rule 9 requests issued by us or Rule 8 requests issued by the Scottish Inquiry did not result in duplication of work and expense, given that, to a considerable extent, they may be looking for the same or very similar material. This forms part of the commitment given paragraph 9 of the memorandum of understanding. The details of the numerous Rule 9 requests sent out by this Inquiry, to which I have already made reference, have been intimated to the Scottish Inquiry so that it can take account as it sees fit of requests already made by this Inquiry, in order to provide clarity to and to ease the burden on material providers.

The Module 2A team have already taken into account the terms of Rule 8 requests made by the Scottish Inquiry when the Module 2A team has been preparing Rule 9 requests for any Scottish organisations who have already received a request from the Scottish Inquiry. In discussions with material providers about deadlines for responding to Rule 9 requests, the Module 2A team has already taken into account any deadlines which the material provider is also working to with the Scottish Inquiry. In addition to this, it is clear that more detailed arrangements and plans will need to be made both for this module in its dealings with the Scottish Inquiry and those which follow. Progress on this has awaited the outcome of the substantial work done within the Scottish Inquiry about the way in which it intends to deliver its terms of reference under its new chairmanship, with a changed Inquiry team and indeed, we assume, to adjust its approach to its slightly altered terms of reference.

Despite this very necessary work, the solicitor teams of both Inquiries have continued to work and are currently working together in order to develop a set of operational arrangements, to deliver the commitments of the memorandum of understanding.

Those operational arrangements will include but not be limited to the sharing of timetabling and plans, the detailed process for document recovery and the redaction of documents.

The solicitor teams meet regularly. On Wednesday last week the Scottish Inquiry published some details about its plans, which included the adoption of a thematic approach based on the three themes of: health and social care; education and young people; and finance, business and welfare. They announced that for each of these themes the Scottish Inquiry will look, first, at the impact of the pandemic, then the implementation of measures, and finally, key decision making.

It is anticipated by our team that, in light of that, further operational arrangements will now be able to be finalised. It seems to us not unreasonable to assume that as our Inquiry will start with preparedness and political decision making in Scotland in modules 1 and Module 2A respectively, that this Inquiry will address those matters first, given that the Scottish Inquiry appears to be dealing with them later in their agenda.

Core Participants will be kept informed about our progress and in our monthly updates issued by the team working on this module, which tends to take the lead on these matters.

Wider public communications will also be issued by both Inquiries when significant steps forward have been made. A key part of the ongoing operational discussions relates to the extent to which material can be shared between the two Inquiries. The attractions of evidence sharing include the minimising of duplication, the material providers in the gathering of evidence, and the minimisation of effort in assessment on the part of the Inquiries and others, in particular Core Participants. Submissions in that regard have been made by some of the Core Participants in this module.

The sharing of evidential material, however, involves complex, legal issues relating to data protection and also a number of considerable practical and technical issues arising, in particular, from the fact that the Inquiries have different terms of reference and different approaches to the way in which they intend to discharge them. At this stage I can simply intimate to you, my Lady, and to Core Participants, that these complex matters are receiving careful attention by both Inquiries. Core Participants will, of course, be kept informed as to progress.

As we have decided to look at the preparedness for the pandemic, including in Scotland, in Module 1, and the key political decisions made in Scotland as part of Module 2A, and the Scottish Inquiry has adopted a different structure which will look at these matters later, it is likely that our investigations will be the first to uncover material which is specifically relevant to these areas. The analysis of it and any relevant recommendations flowing from that will be available to the Scottish Inquiry by the time this Inquiry publishes its report of matters falling within the remit of this module. To that extent, the Scottish Inquiry will have the ability to make use of it. The extent to which it does so is, of course, entirely a matter for Lord Brailsford and his team. The arrangements which have been and are being put in place, my Lady, are designed to provide them with the opportunity to do so as fully as possible and to comply with our obligation to minimise duplication. To move then onto our listening exercise, which we call Every Story Matters, and the important issue of commemoration.

Every Story Matters is the name which will be given to the Inquiry’s listening exercise, through which individuals will be able to communicate to us their experiences of the pandemic.

In response to submissions heard by you in the Module 1 preliminary hearing, further information was made available in the Inquiry’s March newsletter about the detailed plans for this exercise, which can be accessed on the Inquiry website. The Inquiry has committed to providing different ways for people to share their story, including a web form with a save and come back feature, a phone line, a paper form, and in-person sessions, which will be designed to reach seldom heard or under-represented groups. In addition, the Inquiry intends to hold community listening events across the UK, which will include you, my Lady, attending listening sessions of the Inquiry along with other members of the Inquiry staff. These will be launched later this year. The Inquiry has committed to adopting a trauma-informed approach to this exercise and will provide emotional support. A note with further detail on the operation of Every Story Matters was issued by the Inquiry solicitor in January and is available via the Inquiry website. The Inquiry team is grateful to all of those who recently participated in the webinar on Every Story Matters which took place on 15 March and for all of the feedback which has been received in response to that exercise.

The Inquiry is particularly grateful for the feedback received from members of the Scottish Covid Bereaved group on 17 March. This included a detailed analysis of aspects of Every Story Matters’ planning, which the group liked, and useful practical suggestions as to what could be improved going forward. Their analysis drew attention once again to the careful balance to be struck between speed and reasonable thoroughness in this aspect of the Inquiry’s work, to which others, such as Mr Friedman, have also made reference in their written submissions for this hearing. The detail of the feedback received from Scottish Covid Bereaved and other such feedback will, of course, be taken on board for future such webinars and future communications about Every Story Matters, as well as in the operation, ultimately, of the project. In order to fulfil its commitment to commemoration, the Inquiry has consulted widely on this issue. The result is that you, my Lady, have decided that a tapestry should be created as a physical installation. Each panel will be created by a different artist, working with the particular community or communities to develop it. The intention is for the first panels to be unveiled at the UK Inquiry’s hearing centre in time for the first substantive hearings for Module 1 in June. These panels will be transportable to wherever we hold hearings in the UK, so people in Scotland will be able to see them if they attend a hearing or hearings in person. It is also planned that videos providing relevant insight into the harm and suffering caused by the pandemic will be shown at the start of each substantive session. This will include the Module 2A substantive hearings in Scotland. Further details are available within the solicitor to the Inquiry’s note from January. For those who are in Scotland who are interested to know how best they can share their experience with both Inquiries, I can inform your Ladyship that teams in each Inquiry have been working together to prioritise the experience of people in Scotland when they are engaging with the listening projects with each Inquiry. These teams have explored and continue to explore a number of ways to make it as clear and simple as possible for people who share their experience with one or both of the Inquiries listening projects. As I am sure your Ladyship will appreciate, this is not a simple task. Given the sensitive nature of material which is likely to be shared and the need to be respectful of the confidentiality of that information, there are complex legal issues which need to be worked through. The different remits of each Inquiry also need to be considered.

The need for these considerations to be observed, as well as the needs of those whom we wish to be able to participate for respect, dignity and sensitivity are at the forefront of those discussions. Communications with members of the public about the two listening projects and their operation will require to be coordinated, and to minimise the risk of confusion and distress for the people of Scotland, of which we are acutely aware. The details of how this will be achieved will be explained as soon as we are able to do so. The intention from our perspective is that Every Story Matters will go live around the same time as the evidential hearings begin, namely in June of this year. My Lady, having covered the main areas which I said I would cover, I have a few short concluding remarks. During the course of this presentation I have attempted to bring those with an interest in Module 2A up to speed with the developments in our investigations and progress, with particular regard to matters raised by our Core Participants and to set out a roadmap as to how we intend to progress going forward, up to the point of our evidential hearings, which will take place in Scotland and we propose should commence on 15 January 2024.

A further preliminary hearing for Module 2A we suggest should be held in late October or early November 2023, though I would reiterate that there will be both formal and informal opportunities for Core Participants to contribute to the work of the Inquiry in this module, who will be kept appraised of progress and what is expected of them in our monthly module updates before that time. May I, on behalf of the Module 2A team, offer our thanks for the very helpful contributions made by Core Participants to this hearing and the continued contribution of Core Participants and other material providers to the work of the module, which proceeds speedily but thoroughly. May I also particularly thank those who have contributed to the recent request made by the Inquiry team for stories to feed in to the commemoration exercise, in particular members of the Scottish Covid Bereaved group.

Unless there are any other matters with which I can assist your Ladyship further at this stage, I propose that we break now and return for the Core Participant representatives, who have indicated their willingness to do so to make their submissions to you.

Baroness Hallett: I’m very grateful, Mr Dawson, thank you very much indeed.

We will break now and return please at 11.55 am. Thank you.

(11.39 am)

(A short break)

(11.55 am)

Baroness Hallett: Ms Mitchell.

Submissions by Ms Mitchell KC

Ms Mitchell: Thank you, my Lady. We are grateful to counsel to the Inquiry for the detailed notes setting out matters which are to be addressed in the second preliminary hearing and, of course, for his submissions this morning.

Module 2A, which will look at and make recommendations on the Scottish government’s core political and administrative decision making in response to the Covid-19 pandemic between January 2020 and April 2022, is of course of the utmost importance to the Scottish Covid Bereaved.

The Scottish Covid Bereaved are pleased that the substantive oral hearings will take place in Scotland and look forward to the outcome of discussions with the Scottish Inquiry about the use of hearing venues in Scotland. We are also grateful to the senior counsel to the Inquiry who has contacted me directly and made it clear he is keen to ensure a good line of communication, and he can be assured that we will definitely take him up on that offer. On behalf of the Scottish Covid Bereaved, we wish to make eight submissions on various issues. We hope to keep those brief. (1) The oral hearing start date. We note that the new date for the hearing of Module 2A is between January 2024 and February 2024, and that this Inquiry is trying to avoid clashes with the Scottish Inquiry. We understand from discussions with the Scottish Inquiry that the UK Inquiry is more likely to look at decisions from an overall – an overview perspective, and that the Scottish Inquiry is likely to look at a more granular level at events and decisions which took place in Scotland. If, broadly, that is the way forward, it is imperative that the two Inquiries do not sit at the same time, in order that the Scottish Covid Bereaved can properly prepare for and appear at both those hearings.

Whilst this matter is, of course, particularly acute with Module 2A, relating as it does specifically to Scotland, the request that the Inquiry does not sit at the same time as the Scottish Inquiry overall relates not only to the timing of the Inquiry of Module 2A but also more generally to the hearing dates of both the Inquiries. (2) Co-operation with the Scottish Covid Inquiry. We note senior council’s reiteration of the requirement that this Inquiry has to discharge its obligations independently, and we are grateful to senior counsel for placing that centrally to the submissions that he makes. The Scottish Covid Bereaved does understand that such independence does not require that the two Inquiries act without reference to each other and understand that co-operation is not only appropriate but, in fact, on occasion necessary to avoid significant duplication. We note the terms of understanding between both Inquiries. As must be expected in such a document, this is a high-level paper, which doesn’t explain the detail of day-to-day working arrangements. We look forward to finding out more about the operational arrangements when progress is made.

Of particular importance to the Scottish Covid Bereaved legal team is to ensure that, insofar as possible, there will be as little duplication in relation to disclosure of documents, to avoid unnecessary duplication of work.

We would respectfully ask to be provided with more information in respect of the coordination of the listening exercises. We appreciate and we hear what senior counsel says about the sensitivities involved and how difficult a task this will be. We would be grateful if the Inquiries could confirm whether there are to be two separate recordings of information or will the Scottish Covid Bereaved be able to provide their story of experience to one Inquiry which can be used in the other. We appreciate there are no doubt legal hurdles and issues of privacy to overcome in that regard.

What we would hope, however, is there is, first and foremost, consideration given to those who have lost loved ones in the Inquiry, so that they do not have to give their experiences twice, unless of course they want to.

We are grateful to the Inquiry as well for the acknowledgement of the input of the Scottish Covid Bereaved to date.

3. Rule 9 requests. We note the Rule 9 requests which have been made. In counsel to the Inquiry’s note it is stated that Module 2A has now issued 100 or more formal requests for evidence, including, we now note from this morning’s hearing, the most senior members of the Scottish government.

A summary of the requests and an update on the responses is set out at annex A to the note that senior counsel provided. As has already been foreshadowed, the Scottish Covid Bereaved have identified a number of organisations which it considers may have relevant evidence and where the issue of a Rule 9 request to those organisations may benefit Module 2A. Some of these organisations may have already been identified by the legal team for the Inquiry and a Rule 9 sent. We would be grateful if the Inquiry could provide a note of a list of all the individuals and organisations to whom a formal request has been sent, in order for the Scottish Covid Bereaved to consider that list and to identify what it considers to be any omissions. Again, as senior counsel to the Inquiry has stated, we have already begun the process of submitting names of organisations, but presently have curtailed that in order to avoid suggesting organisations to whom Rule 9s have already been sent. We are grateful to senior counsel to the Inquiry’s comments in relation to suggestions, including that for Refugees for Justice.

Refugees for Justice – who we understand, was refused Core Participant status in Scotland because issues of immigration asylum are reserved to Westminster – are individuals, key members of the community, who were heavily impacted by Covid-19, both in terms of illness, isolation and lack of access to medical support and resources. The membership of Refugees for Justice were significantly involved at a grassroots level with asylum seekers who were moved from their safe accommodation to hotels. Indeed, their leadership includes survivors of the stabbing at the Park Inn, an incident which you may come to hear of, and they are looking for answers to their questions of the treatment of asylum seekers during the pandemic. They, along with other voices, we would submit, are far too often silenced, or indeed not heard at all, and during the days of Covid-19 they appear to be stuck in a parallel existence. Clearly, if the Scottish Inquiry believes it cannot deal with this, then these are matters that, it is hoped, will be considered relevant to the UK Inquiry and, most importantly, this module.

The Scottish Covid Bereaved identified a number of other names which are in our note. It may, of course, be that a number of these groups have already received Rule 9s, but we include Positive Action in Housing, Maryhill Integration Network, Scottish Refugee Council, Savan Refugees 4 Justice, JustRight Scotland and Shelter Scotland. Saheliya, which is a black minority ethnic women mental health organisation too.

We note, further to submissions by this morning by senior counsel to the Inquiry, that two of our suggestions the Inquiry has already sent requests too, that being CRER and BEMIS. Other names of experts that we include may be useful are Professor Andrew Watterson, Professor Philip Taylor, Craig Anderson and Ian Mullen. We have set out in some detail in our written submissions their areas of expertise and, if the Inquiry wants any assistance in getting into contact with any of these people, agents for the Scottish Covid Bereaved have indicated that they can provide those details. Moving on, (4) Disclosure. At the last preliminary hearing, Baroness Hallett responded to our submissions on the leaking of the former Health Secretary’s Matt Hancock’s disclosure of WhatsApp messages. The families we represent welcome the Chair’s recognition of the impact on the bereaved seeing WhatsApp messages being disclosed without any kind of notice.

The Chair assured the bereaved that this Inquiry will make every possible effort to ensure that they have investigated all messages and their content before completing any kind of examination on the role of the previous Secretary of State for Health. But the Inquiry will consider that when all Mr Hancock’s records have been disclosed. While we appreciate investigations are ongoing, the Scottish Covid Bereaved are anxious that answers to these questions are received to these questions as soon as possible. Bereaved families across the UK have, over the past few weeks, watched the corrosive and unseemly drip feed of Mr Hancock’s and others’ WhatsApp messages played out for comment in the public arena. Some of the allegations contained in the Daily Telegraph are deeply unsettling to the families that we represent. Whilst we await a response from the Inquiry, the Scottish Covid Bereaved are aware of several critical press articles and unhelpful interventions by politicians in the last few weeks in relation to the UK Covid-19 Public Inquiry.

The Scottish Covid Bereaved wish us to reiterate that there is only one forum in which the deaths of their loved ones can be robustly and transparently investigated, and this is the UK Inquiry, in partnership, of course, with the Scottish Public Inquiry.

The bereaved families believe no individual, no matter how powerful, can be allowed to interfere with the pursuit of the truth of this Inquiry. The families believe that any attempt to curtail both the scale and depth of the investigation carried out by the Public Inquiry and cast doubt on the format which the Scottish Covid Bereaved have campaigned so hard for, would be a betrayal of their loved ones’ loss of lives to Covid. The Scottish Covid Bereaved rightly expect this Inquiry to robustly evaluate the millions of pages of evidence and to come to its conclusions. There can be no convenient shortcut to this process which is now being called for by some in the public domain. Plus the families we represent accept the media have played a important role in campaigning to uncover failures by the UK government, and must continue to do so, in relation to its handling of the pandemic. It is only this Inquiry that can deliver a legacy and uncover the full scale of what happened in every part of the United Kingdom.

The families we represent welcome Lady Hallett having made it clear she will not bow to the pressures of external interference and await the outcome of the Inquiry’s – into Mr Hancock’s WhatsApps. No doubt similar scrutiny will be applied to all government ministers, devolved or not.

5. Instruction of expert witnesses. We note the names of the expert witnesses who have been asked to provide draft reports and we look forward to providing input into these reports because they’re finalised in the way described by my learned friend, senior counsel to the Inquiry. We would like to know whether or not the witnesses proposed for the UK Inquiry will also be the same witnesses used for the Scottish Inquiry, or whether or not efforts are being made to find different experts for both Inquiries. We note what has been said about evidence sharing, and we appreciate that this will not entirely be a straightforward task, and indeed can see occasions when it would be inappropriate to do so. We would nevertheless like to know what this Inquiry’s view is with regards to expert witnesses. As invited by senior counsel to the Inquiry, we will continue to consider and give the names of any prospective witnesses that we consider may be of assistance to the Inquiry in carrying out its role.

6. Parliamentary privilege. We have already expressed the view that the way in which the Inquiry intends to proceed in relation to UK parliamentary privilege seems a sensible way forward.

We note the Inquiry intends to carry out the same process in respect of select committee reports, where that is required. Again, this would seem a sensible way forward. We would wish to make further submissions to the Inquiry if this proposed route causes any unforeseen problems. As noted, of course, this issue does not arise in respect of the Scottish Parliament. (7) Evidence proposal procedure and Rule 10. We were much obliged to the Inquiry of the incorporation of the Scottish Covid Bereaved proposal that informal approach of meeting counsel to the Inquiry after submission of the Rule 10 be implemented in this Module 2. We hope that seeking to persuade the Inquiry team that there are areas or issues that are of such centrality that they require to be asked during the witness’ evidence, will obviate the need for formal applications to the Chair and thus minimise the administration in that regard. (8) Opening statements. The Scottish Covid Bereaved look forward to having the opportunity to have their voices heard in the opening statements in respect of Module 2A.

We note the necessity for a time limit to be put on the opening statement. In that regard, it would be helpful if Core Participants were given sight of senior counsel to the Inquiry’s opening statement in good time before we are required to submit our statements. That may avoid duplication of issues and also save time.

Unless there’s anything further or my Lady would like me to address anything else, these are the submissions on behalf of the Scottish Covid Bereaved.

Baroness Hallett: Thank you very much indeed, Ms Mitchell, I’m very grateful as ever.

Can I just say this in relation to the WhatsApp messages. As you will know, in relation to them, I have no control over the disclosure of the WhatsApp messages from Mr Hancock. I can’t control it in any way, shape or form, but what I can do is assure the bereaved that this Inquiry is in the process of obtaining all relevant WhatsApp messages from all relevant groups, not just those from Mr Hancock, and therefore this Inquiry will conduct a full and thorough investigation of what the – an analysis of what all the messages mean for the public of the UK. So thank you very much indeed.

Ms Mitchell: I’m obliged, my Lady, and that will be of assistance and comfort to those of the Scottish Covid Bereaved group.

Baroness Hallett: Good, thank you.

Mr Friedman.

Submissions by Mr Friedman KC

Mr Friedman: Good afternoon, my Lady. We appear, as you know, for two disabled people’s organisations, Inclusion Scotland and Disability Rights UK, who were made Core Participants by you since the previous preliminary hearing. Can I thank Mr Dawson KC and his team for the contact that was made beforehand and the presentation today. At the Module 2 hearing on 1 March you spoke of the unique features of this Inquiry, with its statutory powers, its broad terms of reference and its Core Participants playing important roles. To that, we would add what brings us together for this hearing. The Inquiry has chosen to dedicate specific modules to learning from the discrete approaches to governing Covid across the four nations of the UK. The rationale for that is understandable. While the union may be devolved politically and administratively, the pandemic knew no boundaries, and especially so on the island of Britain. That is specifically pertinent to disabled people in Scotland, who make up 32% of adults and 10% of children. They were differentially affected by Covid-19 in three main areas. There was: (1) increased risk of poor outcomes from the disease itself; (2) reduced access to routine healthcare and rehabilitation; and (3) the adverse impacts of the non-pharmaceutical intervention.

The disabled people’s organisations anticipate from the terms of reference that the Inquiry will examine the full size, extent and cause of those differentials as they applied to Scotland, and the political and administrative decision making in Scotland as compared to the rest of the United Kingdom. Be all that as it may, my Lady, we appreciate that these devolved power modules are special and some of the external understanding of this Inquiry might not yet have realised why. Although various investigations have taken place in Scotland and the other nations, and there will be the discrete statutory Inquiry for this one to coordinate with, it is important to acknowledge and reflect on the importance to the fact that no such four-nation independent and impartial investigation of political and administrative decision making has happened in the 25 years of devolution. How might that unique feature particularly apply to our clients for a module that, as Mr Dawson valuably puts it, takes place in Scotland, with Scotland and for Scotland?

As you know, the disabled people’s organisations press for an analytical approach to this disaster informed by human rights, that uses human rights not just as a body of laws that lawyers argue over, but as a set of tools designed to help understanding and deepen societal connection.

Having supplied you with the general nation-wide documents for the Module 2 hearing, we have now supplied you with our Module 2A written submissions, what we think are the relevant Scottish government main NGO documents that focus on what our clients suggest are the pertinent issues immediately before and during the pandemic. We do that not because my Lady, or your team, have finalised your witnesses for the hearing, that was clear beforehand and it’s been made very clear today, but we do it precisely because it has not yet been done. The time is short, the endeavour is wide and intense, and our clients want the lens through which disabled people lived and died from Covid to become one of my Lady’s many lenses. When you and your team make preliminary decisions about process and move forward, we therefore offer the following observations that can be summarised briefly.

A focus on the human rights of disabled people and human accounting of the variety of humanity, talent and value that they represent is a stalled work in progress in each of the four nations.

That stalling arises for multiple reasons that you will need to return to, but for present purposes you will see that both recognition of disabled people’s value, and a redistribution and restructuring of society and economics to remove their exclusion, extends to policy and law in Scotland, and you will see in Wales as well, somewhat more than it does in England and Northern Ireland. In Scotland we identify four discrete administrative aspects relating to disability rights that may or may not have made differences in Module 2A decision making, but if they did not we would like you to consider how they could or should have done both for Scotland but also elsewhere. Firstly, unlike in England, the Scottish government in 2016 produced a delivery plan for achieving better compliance with the UN Convention on the Rights of Persons with Disabilities. Amongst other things, it formally adopts the social model approach to understanding disability as something caused by people’s treatment by society rather than being inherent in their condition. That does not mean that the challenges of individual impairment are overlooked, but the social model is the main lens.

Secondly, and further to the submissions the Inquiry has actively been considering these past weeks, you can see that structural discrimination is taken as a given at the level of Scottish government policy and the exception to this existence acts as the starting point for change. Likewise. Intersectional understanding is accepted as a necessary discipline by the Scottish government. Thirdly, Scotland has since 2018 brought into force the public sector duty regarding socio-economic inequalities contained in section 1 of the Equality Act 2010. It requires public bodies including, for Module 2A purposes, ministers, when making decisions of a strategic nature about how to exercise their functions, to have due regard to the desirability of exercising them in way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage. The equivalent of that duty was brought into force in Wales in March 2021. It is not in force in England or Northern Ireland. Fourthly, and we submit inescapably, the human rights culture of the Scottish government and the UK government has not been the same. Before Covid, the UK government had placed a bill of rights before the Westminster Parliament that proposes to scale down positive duties to protect human rights as provided for under the Human Rights Act and the case law of the European Court of Human Rights.

The Scottish government, within the confines of its devolved powers, propose to add to the current Human Rights Act and currently adopts a human rights approach summarised under the acronym PANEL, which covers the principles of participation, accountability, non-discrimination and equality, empowerment and legality.

The human rights outcome, enshrined under the Scottish National Performance Framework, that the devolved government wants itself to be judged by, includes the aim to “provide the care people need with love, understanding and dignity while developing robust, independent means for people to hold government to account and encourage an active interest in politics and civic life”.

Nevertheless, my Lady, Inclusion Scotland have criticised gaps between Scottish government rhetoric and conduct during the pandemic. Matters that are likely to be significant include lack of planning, failure to work directly with disabled people to construct interventions with their situation fully in mind, and critical gaps in the data.

Moreover, although the Scottish government may have taken some steps to mitigate the consequences of austerity policies before 2020, the standard and capacity of independent living for disabled people in Scotland was still that much less resilient when the pandemic emergency measures came into force.

That provides the DPO’s suggested context and perspectives for the next stage of Inquiry preparation. We understand that the commissioned expert reporting will assist you to evaluate how much the four nations properly operated an all-Britain pandemic response, as well as how each administration catered to their local populations as required by the respective democratic and legal frameworks.

On this, we respectfully ask you to consider, as he then was, Sir Nicholas Phillips’ report on BSE, published in 2000. At first blush this seems to be another public inquiry of past years that was lost to government memory too soon after it reported and was not sufficiently in the forefront of minds when the pandemic began. We say that because a recommendation of the BSE report, particularly relevant to this module, was to ensure that as then forthcoming devolution did not compromise a sufficiently synchronised response to a UK-wide risk.

Insofar as the Inquiry will want to understand whether the Scottish Covid-19 Advisory Group that advised its government bore a different make-up and personality to its SAGE counterpart, the Inquiry will see that the House of Commons’ report on the subject saw that both of them lacked sufficient expertise in service provision. Neither of them seemed to have complied with the disability rights principles that policies affecting disabled people should be co-produced and co-designed with disabled people. We have considered my Lady’s Module 2 ruling of 9 March 2023 that, in addition to the expert evidence to be obtained in relation to structural racism, the Inquiry will explore the possibility of obtaining a single report covering other issues, if necessary drafted by a small team of experts covering different specialisms. In response to that ruling, that the DPO welcome, we would add the following: first, the competency of the team of experts should include those with appreciation of structural discrimination as it is accepted to apply to disabled people both by the protection under the Equality Act 2010 that is afforded to them, also the terms of the United Nations Convention on the Rights of [People] with Disabilities, but also and further, in the instance of Module 2A, because of Scottish government policy to do so.

Second, the DPO stance remains that these issues as they applies to disabled people directly as well as intersectionally, should be examined by a fourfold cumulative approach of asking: (1) them and other witnesses about it; (2) doing the same with the presently instructed experts, even to establish what they don’t know; (3) raising disability-related issues with the relevant parts of the team of specialists to be assembled; but also (4) to take into account the core sources on the subject, especially as they influenced UK and devolved government policies immediately prior to and during the pandemic.

On selecting and questioning of witnesses we make two points at this stage. First, consider calling witnesses from the organisations of disabled people’s groups, including Inclusion Scotland, because they were involved in trying to respond to the pandemic in real time.

Second, we recognise that the Inquiry is determined to consult along the way, but the final preparation for these hearings could be tight and the time proposed for the actual hearings is relatively short. For these reasons, early consultations both ways are so welcomed in the way it has been presented today, including through Core Participants directing the Inquiry’s attention to key issues and documents, is going to be important, and it is better to do it as soon as possible. Finally, my Lady, on reasonable adjustments for Inquiry hearings. You will have well in mind the various suggestions that have been made and we appreciate this now has to be resolved systematically. Can I reiterate that the absence of a British sign language interpreter on the screen during hearings adversely impacts on their public nature. For those people, deaf people who use subtitles, the algorithm-based text on the YouTube channel is not accurate. The transcripts and the video of the hearings is still taking some time to publish on the Inquiry website, although we appreciate that is being worked on. But going forward, especially for the substantive hearings, there is a sizeable section of the deaf population who do not necessarily read subtitles or transcripts and/or, importantly, do not identify with written text as a mode of communication.

That is also an issue which arises in relation to the listening project. How will those who communicate through British and/or International Sign Language be listened to or, to use my Lady’s words, make their story matter?

You will see that when we use the capital D for “Deaf” in this request, it is used as a cultural label and refers to people who are profoundly deaf, whose first or only language is sign language and a part of a cultural and linguistic minority known as the Deaf community. In other words, you are being asked to provide an interpreter and the ability to participate for that part of the UK population.

My Lady, those are our submissions.

Baroness Hallett: Thank you very much indeed, Mr Friedman. You make some very important and valid points, and I undertake to ensure they are all very much considered and all that you have said will be taken into account. So I’m very grateful to you.

Mr Friedman: Thank you, my Lady.

Baroness Hallett: Ms Gallagher.

Submissions by Ms Gallagher KC

Ms Gallagher: Thank you very much, my Lady.

May I just check you can hear me properly.

Baroness Hallett: I can thank you.

Ms Gallagher: Thank you, I’m grateful.

I appear today on behalf of the Trades Union Congress, the TUC, and the Scottish Trades Union Congress, the STUC. We have filed written submissions with you in advance of today’s hearing. We, of course, stand by those written submissions. We are grateful to you, my Lady, and to Mr Dawson KC, for the indication that they are helpful and that the various points we have raised are under consideration. As a result, I don’t need to go through each and every point orally today. May I at the outset thank Mr Dawson and his team for their constructive engagement and their commitment to being willing to consider proposals made by my clients and others, and to have a line of communication outside this formal hearing process. We are very grateful for it and we hope that that will facilitate continuing constructive engagement, which is at the heart of what the TUC and the STUC want to do in this Inquiry. Against that backdrop, my Lady, in the short time available today, bearing in mind rumbling stomachs, which I can’t quite hear electronically but I assume they are present, I intend to make some introductory overall remarks, including highlighting matters of particular concern to my clients regarding the interrelationship between this module and other parts of the Inquiry, and then I want to address two specific matters orally. First, timetabling and adequate time for meaningful participation by Core Participants and, secondly, a number of specific matters about Rule 9 and expert input. So, turning to introductory remarks. By way of very brief introduction, my Lady, as you know, and as recognised in your supplemental notice of determination of 10 February 2023, the TUC and the STUC are separate organisations, albeit with similar functions and many shared objectives. The TUC supports its 48 member unions, listed in annex 1 to our submissions, bringing together 5.5 million working people, and many of its member unions have members across Scotland. And the STUC supports its 39 affiliated trade unions and 20 trade union councils, listed in annex 2, representing over half a million, 540,000, workers in Scotland, across a very wide range of industries, many of whom were profoundly affected by the Covid pandemic and by governmental responses to it, whether in Scotland or in Westminster and many of them, my Lady, as you will have seen, involved key workers who provided vital services who kept people in Scotland cared for, fed, able to access the basic goods and services they needed to live, and tended to them when they were sick.

You will see from that list in annex 2 that it spans, for example, warehouse staff, midwives, doctors, railway drivers, HGV drivers, airline pilots, prison officers, artists and journalists, including freelancers and the self-employed, teachers and lecturers, emergency services personnel and workers in a very wide range of industries, including construction, food production and the care sector. We think that the listening exercise will be of vital importance in capturing the experiences of those at work in Scotland in those very many industries listed in annex 1 and annex 2, and both the TUC and the STUC stand ready to assist in this regard, and indeed they are uniquely well placed to do so. My Lady, I don’t repeat the submissions that I made at a previous hearing regarding Workers’ Memorial Day. May I just indicate in this context, again, that of course is of vital importance to workers in Scotland too, and we reiterate our request that the Inquiry mark that, given that the date is upcoming.

My Lady, we have already raised with you the importance of drawing together lessons learned and evidence which has emerged following the Module 2A, 2B and 2C hearings. We remain of the view that strand-tying submissions at that point regarding the UK government’s response are highly likely to be of benefit and, indeed, necessary, and at this stage we say that evidence in respect of Scotland is likely to reveal further information, and may indeed raise further questions for the Westminster government regarding devolved matters, and there may be a compare and contrast exercise to be undertaken in respect of the four nations of the UK and, indeed, the overall UK governmental response. That’s all the more important given that it appears to us very likely that the evidence will show stark divergences between the approaches taken by the Scottish and the UK governments. That’s certainly the experience of my clients, as we made clear from the outset in our application for Core Participants status back in September, our first written submissions for this module in October and my colleague Mr Jacobs’ oral submissions in November and, my Lady, it will also be clear, we suggest, from the draft Rule 9 response which has been provided to your team by the STUC.

Now, we appreciate that you will not be taking a decision on this today and you will be keeping an open mind. We are keen, however, to avoid a situation in which fixed timetables are put in place which allow for no time, for example, between the end of Module 2C and the commencement of the hearings in Module 3, which would essentially preclude this approach which we have been urging from the outset and that’s why I raise it again today. Although it is simply putting down a marker, it is an important marker, and I reiterate it given that we can see the Inquiry timetabling overall is proceeding at pace.

Mr Dawson KC began today by referring to what was happening at this time three years ago, and in particular the number of deaths at this time three years ago, and it was, at the outset of this hearing, a stark reminder of the vital importance of this Inquiry and this module, examining the Scottish government’s core political and administrative decision making from early January 2020.

On behalf of my clients, we also note that by this time three years ago, the TUC and STUC had been raising the alarm for some time, both, for many years, regarding matters you will be exploring in Module 1, regarding pandemic preparedness, workplace safety and other issues which had already become highly relevant in the early stages of the pandemic in Scotland and, indeed, across the UK. But also the STUC, throughout early March 2020, had been raising specific matters and had been raising the alarm for some weeks by the time we hit this date three years ago. For example, there are statements from 3 March about entering talks with the Scottish government and raising serious questions for the UK government at that stage regarding the importance of allowing workers access to sick pay from day one, and indeed the STUC General Secretary, as early as 3 March, highlighted the risk of presentee-ism, where workers might be discouraged from isolating because of their financial circumstances or other workplace pressures. That real time evidence of what the STUC was doing in those early days of 2020 is of vital importance. That statement from the STUC from 3 March was on the same day as Boris Johnson made a statement in which he said: “… I want to stress that for the vast majority of the people of this country, we should be going about our business as usual.” You will see the stark contrast between the wording of the STUC on 3 March and the wording of Boris Johnson on 3 March, where his advice was about handwashing with soap and singing happy birthday and business as usual.

Moving on, my Lady, to specific issue (1) on timetabling and adequate time for meaningful input. We have three short subpoints on this.

1. In relation to the final hearing, may I direct your attention to paragraphs 7 and 8 of our written submissions, where we have raised concerns that the Inquiry has timetabled, it appears, only 14 days of oral hearings for Module 2A. Bearing in mind time permitted for opening and closing statements by Core Participants, assuming counsel to the Inquiry will make a detailed opening statement too, it seems to us that that will allow at most 12 days for oral evidence, and we note again at this stage that we are concerned about that. We are not in a position to make a firm submission on an alternative time estimate but, again, at this stage, when we haven’t yet seen a single page of disclosure on this module, we are concerned that is very short. It does seem to us to be extraordinarily short, particularly when this might be the only part of the Inquiry hearings focused exclusively on Scotland and taking place in Scotland, and we note how much shorter it is than the eight weeks set aside for Module 2 hearings.

So at the very least, my Lady, we ask that there is leeway so that there is flexibility to extend that time estimate.

That links to a second subpoint, (b), the further preliminary hearing. We are concerned that the third preliminary hearing must take place sufficiently early to allow for leeway if you need to adjust that timetable or if we need to adjust the approach. I say that particularly given that, today, none of us have seen a single page of disclosure, we are necessarily making submissions without sight of the Rule 9 requests or sight of the Rule 9 request products, despite the very helpful indications we have had from your team. We suggest that preliminary hearing must be sooner in order to be effective. That’s why we suggest September 2023 in our written note.

Third point under this heading, so point (c), is about the opening statement. Very simple. We, along with the Scottish Covid Bereaved, request advance sight of CTI’s opening remarks. We are conscious of the need for time limits and we wish to adhere to those. To make that effective and fair we say early sight of CTI’s submissions would assist and avoid duplication.

The second and final specific issue for this module that I wish to address is about Rule 9 requests and expert input. I have the caveat, of course, that we haven’t yet seen disclosure, and that’s why it is all the more important that there will be a further preliminary hearing in good time.

We are very grateful for the update from Mr Dawson about certain matters today, including Rule 9 requests being sent to senior members of the Scottish government and also to the Coalition for Racial Equality and Rights, which we proposed along with the Scottish Covid Bereaved. We are very grateful for those and we, of course, agree with those steps being taken. We are unclear whether all the ministers that we have listed and the Scottish government officials we have listed have been approached. See our paragraph 11. We just ask for that to be considered carefully, that those individual names were provided with the benefit of the STUC and TUC’s extensive engagement with Scottish government and Scottish government officials from an early stage, so we suggest that all of those names should be approached if they haven’t been already. In relation to other organisations, we are grateful for the request going to CRER. You will see our concern, my Lady, at our paragraph 13 that because – whilst they have much value and we recognise that, many of the requests in respect of vulnerable groups have gone to organisations across the four parts of Module 2. We just want to avoid a situation where the evidence is overly England-centric. We can’t, at this stage, say anything further than it is a concern. We can’t say whether it is well founded, we will keep it under review. We are grateful for Mr Dawson’s indication that he is reviewing carefully submissions that we made in this regard.

May we just draw to your attention the additional organisations we’ve highlighted in paragraph 13 who we think will add real value: LGBT Youth Scotland, YouthLink Scotland, Alzheimer Scotland, Care Home Relatives Scotland and the Scottish Women’s Budget Group, my Lady. The next point we want to make in respect of this issue concerns the HSE, and we have addressed that in some detail in writing, my Lady. The short point is this, we understand that the Module 2 team intends to direct a Rule 9 request in respect of the HSE, which is welcome and important. The HSE, of course, is the Great Britain-wide regulator of health and safety at work. We have set out in our written submissions why it is important that a bespoke Rule 9 request is made to the HSE by the Module 2A team, because the position in Scotland gives rise to distinct issues which warrant distinction consideration and are unlikely to have been set out in the Module 2 request, and we explain that in writing but, in short, we say the HSE experience in Scotland may well have had differences to that in England. Our understanding is that it did.

The framework for the HSE is fundamentally different in Scotland because public health responsibility is devolved to Scotland, albeit the HSE has workplace health and safety jurisdiction and the Scottish government emergency public health legislation gave particular powers to the police and local authorities to, for example, enforce social distancing in all premises, and the HSE and local authorities in Scotland agreed local enforcement arrangements for that emergency legislation complementary to health and safety law. Of course, in Scotland the HSE chairs the Partnership on Health and Safety in Scotland, a specific tripartite forum for the Scottish health and safety community, supporting the collaboration between employers, employees and government on workplace health and safety in Scotland, undoubtedly relevant evidence, we say, to Module 2A. So we reiterate that request for a specific Module 2A Rule 9 to go to the HSE. Finally, under this heading, my Lady, we are grateful for the indication about the consideration of experts who have been proposed either as experts or for the purposes of sending Rule 9 requests to them, to gather evidence. May we commend to you the three additional names which are listed in our written submissions. Dr Angela O’ Hagan, independent chair of the Scottish Government Equality Budgets Advisory Group, who has very regularly contributed to evidence sessions in the Scottish government and is particularly well placed to give evidence as to the impact of the pandemic upon women in Scotland. Professor Andrew Watterson, member of the faculty of Health Sciences at the University of Stirling, and we note that that is a request echoed by another Core Participant by the Scottish Covid Bereaved. He has commented widely on public health interventions during the pandemic. His commentary has included an examination of how several trade unions helped professional bodies and NGOs, essentially sought to fill gaps in regulatory and ministerial inaction by offering solutions to identify Covid-19 threats for healthcare workers, social care workers, production workers and others. His evidence, we say, would be vital on civil society stepping in where government didn’t go. And, third, Professor Gerry McCartney, who has extensive expertise in public health, inequalities and the Covid response. You will see the summary that we have given of his relevant expertise in our written submissions and we are very happy, my Lady, to work further with your team if any further information is needed about those individuals or about, indeed, the individuals connected to my organisation, who have been cited by some others as potential witnesses to be approached for Rule 9.

My Lady, unless I can assist further, those are the submissions from the TUC and the STUC. We stand ready to help you and we hope that our written and oral submissions today are of assistance to you and your team undertaking this vital task.

Baroness Hallett: They are, Ms Gallagher, and again I thank you for the very constructive approach and again I undertake to ensure that all the matters you have raised are very properly considered. So thank you again.

Ms Gallagher: Thank you.

Baroness Hallett: Mr Mitchell KC.

Submissions by Mr Mitchell KC

Mr Mitchell: Good afternoon, my Lady. Can I just check that my Lady can see and hear me okay?

Baroness Hallett: I can. Thank you very much.

Mr Mitchell: Good. Thank you.

My brief submission today, made on behalf of the Scottish Ministers, highlights two points which either are currently proving to be or will, in due course, prove to be of great assistance in preparing for the UK and the Scottish Inquiry.

These points too will, I suspect, also be of interest to members of the public who are not involved in the day-to-day preparation for the Inquiries, but who have a natural interest in the progress of the Inquiries and indeed their outcome. The first point relates to the memorandum of understanding, which we have heard quite a bit about today. Observers will know that the UK and Scottish Inquiries have been charged with examining many of the same issues surrounding Covid and its handling by the UK government and the Scottish government. It is only right and proper that both the UK Inquiry and the Scottish Inquiry examine those issues from their own standpoints. But it makes sense, of course, where possible, not to duplicate the investigative and preparatory work and indeed, where appropriate, for there to be a single set of conclusions on a particular issue. The public has a right to expect that if money will be well spent and the memorandum of understanding, which essentially seeks the most efficient way over the hurdles that are thrown up by two Inquiries running at the same time, seems to us, respectfully, to do that.

In addition to having one eye on the public purse, the memorandum should assist Core Participants, in particular those such as the Scottish Ministers, who will provide the bulk of the documents to the Inquiries.

That process of ingathering, collating and ultimately supplying to the Inquiries those documents which the Inquiries have requested, has been proceeding at pace now for several months. It is going well and ministers are committed to that process. However, of course, assistance is always welcome and the memorandum ought to provide that assistance. The second point was foreshadowed in my first point and that is co-operation with the Inquiry. I simply want to mention the good working relationship that has developed between the UK Inquiry and the Scottish government. As already mentioned, the Scottish government has been working hard to provide the Inquiry is a significant volume of evidence, both documentary and in the form of witness statements, in response to the Inquiry’s requests. The Scottish government’s engagement with the Inquiry team that is overseeing Module 2A, has been extremely positive and we are grateful to the Inquiry team for their understanding and co-operation, while the evidence is ingathered and ultimately produced.

The Scottish government would be happy to facilitate the sharing of the material between the two Inquiries or to assist in any other way that is felt necessary.

Finally, as an addendum, the point has already been made as to the desirability of avoiding clashes between the UK and Scottish Inquiry insofar as the choosing of dates for public hearings is concerned, and we would simply add our voice to those who have already made the point.

My Lady, that is all I have to say on behalf of the Scottish Ministers today unless there is any particular issue I can help my Lady with.

Baroness Hallett: No, thank you very much, Mr Mitchell. I’m very grateful.

Mr Mitchell: Thank you.

Baroness Hallett: Mr Dawson, do you have any concluding remarks?

Concluding Remarks by Mr Dawson KC

Mr Dawson: I do, my Lady, albeit very briefly.

If I could reiterate the thanks which I extended earlier to those who have participated so actively in and around this preliminary hearing, as you yourself have identified, a number of the submissions which have been made are very Scottish-specific and, certainly from our point of view, incredibly helpful.

In that regard may I reiterate what you have already said, my Lady, that the requests for further information which have been made by Core Participants have all been noted and will indeed be followed up by members of our team. Indeed, in the spirit of co-operation which has been fostered, it may well indeed be the case that we seek further information from Core Participants on suggestions they have made in order to be able to take them forward as efficiently as possible. I note that a number of the Core Participants’ representatives have offered that they would do that, which is also extremely helpful. With regard to the particular submissions that have been made, there are a few observations which I would make. With regard to the submissions made by Mr Friedman, there are two points which he made in relation to the planning for the hearings, which I would like to say that we agree with him on. The first is that the time for the hearings in this module as currently planned are short and that, as I have already tried to outline, we agree with him that the best way to try to deal with that situation is to try to encourage a spirit and a practice of early Core Participant engagement, and I have outlined in the main body of my submissions various ways which we intend to do that.

This is precisely why. We appreciate the full submissions which he has made on behalf of his clients, and indeed others have made, and indeed the very practical suggestions as to the ways in which we might foster that spirit of co-operation further. As regards Ms Gallagher’s submissions on behalf of the TUC and STUC, there is one point which I would simply wish to draw attention to. That is what she described as the strand-tying requirement, whereby decision-making in the four nations of the United Kingdom can be looked at compared, considered and contrasted. I would acknowledge, as she correctly represented, that this is a matter on which the clients whom she represents have made forceful submissions for some time, including at the first preliminary hearing. This is a matter of considerable importance, and indeed links into a point which has been made in specific context by Ms Mitchell on behalf of Scottish Covid Bereaved, that this Inquiry is uniquely placed to be able to derive information and reach conclusions and make recommendations based on the different approaches taken by the four nations of the UK. This is a matter which, as your Ladyship will understand, causes difficulty in the sense of how we go about precisely resolving that. That is a matter which, internally I can assure you, is a matter of active consideration amongst the teams which are responsible for the delivery of the four modules and, insofar as progress is made on that, that is a matter of course which will be intimated to Core Participants through our module in the usual way through monthly reports and otherwise.

Other than that, my Lady, those are the only specific matters on which I felt it appropriate to address your Ladyship further. Unless there’s anything further which you would like to hear from me, that’s all I have to say.

Baroness Hallett: Thank you very much, Mr Dawson.

I have already thanked the Core Participants for their written submissions. I should now like to thank them all for their oral submissions and for their excellent timing.

All the submissions I have heard this morning were focused, constructive and very helpful and that bodes well for the future of this Module 2A. So thank you

everybody for your attendance today.

(12.52 pm)

(The Inquiry adjourned)