2. Opening Statement by Mr Keith

Mr Keith: My Lady, by way of brief introduction what I’m going to do is commence by setting that arrangements for today’s hearing and then introduce the Core Participants. I will then turn to say a little about the background to and commencement of this Inquiry before introducing this module, Module 1, and addressing some of the legal issues that arise and which, my Lady, you have prefaced.

The practical arrangements starting necessarily with the arrangements for today, these proceedings are of course being recorded and live streamed to other locations. May I say this has certain benefits. It allows the hearing to be followed by a greater number of people than would be able to be accommodated within this hearing room or any overspill room. Also in accordance with section 18 of the Inquiries Act 2005, my Lady, you are obliged to take such steps as you consider reasonable to ensure that members of the public are able to attend or see and hear a simultaneous transmission of the proceedings. Live streaming goes a long way to satisfying that obligation.

Also, I need to say that as is routine in public inquiries where there may from time to time be matters mentioned of a potentially sensitive nature, the broadcasting of the hearing will be conducted with a 3-minute delay, and this provides the opportunity for the feed to be paused if anything unexpected is aired which should not be but, my Lady, we don’t expect any such matters to arise in the course of today.

Representation. Let me turn to that. Present today, whether in person or remotely, and excluding myself and the Inquiry legal counsel and solicitor team who are here, are counsel and solicitor teams representing 28 Core Participants in Module 1. All the Core Participants are therefore legally represented. I don’t propose to read out the names of the legal representatives. My Lady knows well that they are set out at tab 4 of your bundle. Of those legal representatives, I believe that 22 are present before you today and six are attending remotely.

Then most important, the Core Participants. The Core Participants know who they are, but I should explain for the others that they are entities, organisations or persons with a significant legal interest in Module 1 and who therefore have enhanced rights to participate in this process. Each of them, those appearing before you today, remotely or in person, were granted this status by you for the purposes of this module under Rule 5 of the Inquiry Rules. The list of the Core Participants is also in your bundle but I intend to read them out so that we all know who they are. There is no significance in the order of the names that I will read.

Covid-19 Bereaved Families for Justice; Scottish Covid-19 Families for Justice; Covid-19 Bereaved Families for Justice Cyrmu; Northern Ireland Covid-19 Bereaved Families for Justice; the Chancellor of the Duchy of Lancaster (the Cabinet Office); His Majesty’s Treasury; the Secretary of State for Health and Social Care; the Secretary of State for the Home Department; the Secretary of State for Business, Energy and Industrial Strategy; the Secretary of State for the Environment, Food and Rural Affairs; the Office of the Chief Medical Officer; the United Kingdom Health Security Agency; NHS England; the Government Office for Science, the Association of Directors of Public Health; Imperial College of Science and Technology; represented legally together, the Local Government Association and the Welsh Local Government Association; the National Police Chiefs’ Council; Scottish Ministers; Public Health Scotland; NHS National Services Scotland; the Welsh Government; Public Health Wales; the Executive Office for Northern Ireland; the Northern Ireland Department of Health, the Trades Union Congress (the TUC), and the British Medical Association (the BMA).

My Lady, Core Participant status brings of course significant procedural advantages. Core Participants get access to the disclosed documents. They will get to make submissions on the course and mechanics of your Inquiry. They will get to raise specific questions and assist you in ensuring that the Inquiry can discharge the formidable duties imposed upon it.

May I say something straight away about those duties so that there is no doubt. That duty as you have explained it is to get to the truth, to ensure that the full facts are revealed, that culpable and discreditable conduct is exposed and brought to public notice; that plainly wrongful decision-making and significant errors of judgement are identified; and that lessons may be properly learnt. The bereaved and those who have suffered are absolutely entitled to no less.

The extent of the collaborative approach required between the Inquiry and the Core Participants and, in particular, the bereaved groups is an issue that has been raised before you in the written submissions, and it is important that I address it now. In deference to the importance of the role that the Bereaved Families for Justice organisations play and your stated wish that the Inquiry foster an atmosphere of inclusion, there has been extensive communication already between you, your team and those groups.

Even before the Terms of Reference were finalised, the Inquiry team was working closely with all the Bereaved Families for Justice organisations and I know, my Lady, that you are grateful for their assistance in the terms of reference consultation exercise that took place in March when you met bereaved families across the United Kingdom.

The views they shared, including on issues like DNAPRs, do not attempt cardiopulmonary resuscitation decisions and end of life care, informed your recommendations for changes to be made to the scope of this Inquiry, all of which proposals the then Prime Minister accepted.

We have also had a number of meetings. There has been some small disappointment expressed from one quarter that the Inquiry team did not add to the agenda items proposed by some of the groups for those meetings, but may I say that the agendas were only provided shortly before the meetings. But, in any event, we were and remain completely happy to be guided by them as to what they wished to raise with us.

There have also been multiple calls and a significant amount of correspondence. Indeed, the solicitor to your inquiry, Mr Martin Smith, has engaged with the Bereaved Families for Justice groups more than with any other Core Participant, and I should also observe that they have benefited from your 28 March 2022 decision to grant legal costs in connection with the consultation process. They have also received a section 40 determination to cover costs from 28 July immediately after Module 1 had been opened.

So may I also make clear that the Inquiry team is genuinely grateful for all the contributions from them and from the other core participants both before this hearing and in the written submissions.

Frankly, in this unprecedented and vast and difficult undertaking the Inquiry team needs the insightful and sensible assistance of all the Core Participants. A list, my Lady, of the Core Participants that you have designated will of course be published on the website in due course.

Turning to the written arguments which have been produced for this morning, my Lady, as you know, you have had notes from myself and Ms Blackwell, assisted by the very able junior counsel team that help us, as well as from Mr Smith, sent out in advance of the preliminary hearing.

The Inquiry has received eight written submissions in response, one of which is a joint note submitted on behalf of Covid-19 Bereaved Families for Justice and Northern Ireland Covid-19 Bereaved Families for Justice. The majority of the remainder of Core Participants have kindly indicated that they don’t wish to make oral submissions and have not filed written submissions.

The written submissions have, obviously, all been circulated around the Core Participants. So, my Lady, what I propose to do is to say something about the background to the Inquiry, its commencement and procedures so as to illuminate and highlight the issues which arise for ventilation today.

I don’t propose to answer all the points made in the written submissions. I will reserve my position in respect of some or all of them until they have been developed by the Core Participants in their oral submissions.

My Lady, the Inquiry understands that eight of the Core Participants before you want to make oral submissions. So, after my opening remarks, you will of course be hearing from them following a speaking order that you have had drawn up.

To aid the better recollection, if it be needed at all, of the devastating impact of the Covid-19 pandemic and to reinforce the utter seriousness and extent of this inquiry’s task, it’s necessary to set out the briefest of chronologies of the early stages of the pandemic. For many, including some here today, they will never be forgotten, but it is remarkable how with the passage of time we have allowed some of those terrible details to be forgotten.

My Lady, as your opening statement recalled, in late December 2019 a cluster of cases of pneumonia of an unknown aetiology was detected in Wuhan City, Hubei Province in China. A new strain of coronavirus was subsequently isolated on 7 January. It was identified as Severe Acute Respiratory Syndrome-Coronavirus 2 SARS-Cov-2.

On 21 January the World Health Organisation published its Novel Coronavirus 2019-nCoV Situation Report 1. It recorded that, as of 20 January, 282 confirmed cases of 2019-nCoV had been reported from four countries including China, Thailand, Japan and the Republic of Korea. On 30 January, the second meeting of the International Health Regulations Emergency Committee of the World Health Organisation declared a public health emergency of international concern but it didn’t recommend any travel or trade restrictions.

The virus and its associated disease Covid-19 spread rapidly. On 15 February, France recorded the first official death in Europe from Covid-19. By late February, the number of cases of Covid-19 outside China had increased 13-fold and the number of affected countries had tripled. A worldwide public health emergency ensued and, on 11 March, the World Health Organisation declared Covid-19 to be the first coronavirus pandemic.

As few on this planet will be unaware, Covid-19 has killed millions of people worldwide and infected many millions more. As of 20 September of this year over 609 million confirmed cases of Covid-19, including around 6.5 million deaths, have been reported to the World Health Organisation. Some estimates of death put the figure for estimated deaths from Covid-19 at 17.5 million.

The pandemic has led to financial and economic turmoil. It has disrupted economies and education systems and put unprecedented pressure of national health systems. Jobs and businesses have been destroyed and livelihoods taken away. Communities, especially the poor and vulnerable, have been devastated and existing inequalities have been widened and exacerbated.

The disease has caused widespread and long-term physical and mental illness, grief and untold misery. Its impact will be felt worldwide, including in the United Kingdom, for decades to come.

As everyone here will recall, on Monday 23 March 2020 the then Prime Minister announced severe restrictions on the entirety of the United Kingdom in what became known as the first national lockdown. My Lady, I don’t propose to say more about the events leading up to that cataclysmic moment in the life of this nation because for this preliminary hearing it’s not required, and their detail will in any event be a matter for you of course to determine. But vast swathes of human and social activity were ordered to be curtailed and much of public life halted. Almost every area of public life across all four nations, including schools, the transport system, the justice system, prisons, the majority of public services, were all adversely affected. Hospitality, retail, travel and tourism, arts and culture and the sport and leisure sectors effectively ceased to operate; even places of worship closed.

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

The months and years that followed saw death and illness on an unprecedented scale. Recent figures calculate that in England there have been 165,806 deaths within 28 days of a positive test or 171,764 deaths where Covid-19 was recorded on the death certificate. The Office of National Statistics provides weekly figures for deaths that are so registered. In Scotland the figures are no less terrible: 12,389 and 15,555 by those two measures as of 4 September; in Wales, 7,844 and 10,675; and in Northern Ireland 3,445 and 4,832.

By an alternative measure of excess deaths or excess mortality, that is to say the number of deaths from all causes above and beyond what would be expected under normal conditions, i.e. had the pandemic not occurred (so capturing not only confirmed deaths but also Covid-19 deaths that were not correctly diagnosed or reported as well as deaths from other causes attributable to the pandemic) the figures are likely to know higher still.

Beyond the individual tragedy of each and every death, it is clear the pandemic placed extraordinary levels of strain on the UK’s health, care, financial and educational systems, as well as on jobs and businesses. It affected the health and well-being of vast numbers of people, particularly vulnerable groups, including people with disabilities, the clinically vulnerable, the mentally ill, ethnic minority groups, older people, children, and those living in deprived areas. The cost in human and financial terms of bringing coronavirus under control has, my Lady, been immense. Government borrowing and the cost of procurement and of the various job retention, income, loan, sick pay and other support schemes has severely impacted public finances and our financial health.

Concern has been expressed from many quarters that poor health and existing inequalities have left parts of the United Kingdom more vulnerable to the disease and that the restrictions imposed on the country have led to unmet health needs, damaged educational prospects and financial insecurity. Societal damage has been widespread, with existing inequalities exacerbated and access to opportunity significant weakened. The impact on the NHS, its operations, its waiting lists and elective care has been similarly immense.

My Lady, this Inquiry has been constituted to investigate on behalf of the bereaved and those who have otherwise suffered, as well as the wider public whether anything could have been done more to prevent their loss or reduce their suffering. More specifically, in this module, they are entitled to know whether the United Kingdom and its systems for preparedness and response could have been better. Only in this way, as you have said, can proper and effective recommendations be drawn up to protect the country better from pandemics, whether caused by future coronavirus variants or some other forms of disease and also from comparable civil emergencies. Given the sheer extent of the impact of the pandemic and the Government decision-making that was required across such a very wide range of areas, it is little surprise that this Inquiry will be no less complex and multifaceted.

May I therefore turn to say something about the commencement of the Inquiry so that its legal foundations and scope can be properly understood and the work that has already been done brought to public attention.

On 12 May, the then Prime Minister made a statement in the House of Commons in which he announced there would be a public inquiry under the Inquiries Act 2005. On 15 December as the sponsoring minister he appointed you, my Lady, as Chair. In the written appointment letter, the Prime Minister confirmed that he would be consulting with ministers from the devolved administrations. Such consultation is required by section 27 of the Inquiries Act 2005 to enable the inclusion in the terms of reference of an inquiry for which a United Kingdom minister, including the Prime Minister, is responsible of anything that would require the Inquiry to determine facts and make recommendations wholly or primarily concerned with a Scottish matter or a Welsh matter or a transferred Northern Ireland matter.

Draft terms of reference were drawn up making clear that the Inquiry would consider and report on the State’s preparations and response to the pandemic and would consider reserved and devolved matters in those nations in respect of which there had been a need for such consultation.

On 10 January, you wrote to the Prime Minister recommending certain amendments to ensure greater clarity and to enable you to conduct the Inquiry at an appropriate pace. You also sought an express mandate permitting the publication of interim reports.

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

On 4 February the Prime Minister responded accepting, with some minor irrelevant changes or minor caveats and a small number or textual refinements, the detailed changes that you had proposed.

On 10 March, having consulted with the ministers from the devolved administrations in the way that I’ve described, he wrote to you to inform you of certain further changes which had been made in response to their comments. The same day, the draft terms of reference were published.

You then wrote an open letter to the public in which you announced the launch of a public consultation process on the draft terms of reference. The consultation document sought the public’s views on whether the Inquiry’s draft terms of reference covered all the areas that they thought should be addressed and on whether the Inquiry should set a planned end date. The consultation was open to everyone, and the public could contribute on the Inquiry’s website by email or by writing.

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

In total you received over 20,000 responses to the consultation. An independent consultancy team was commissioned to analyse the response. They produced a comprehensive report summarising those views and the key themes that emerged. So, in light of that process and the many thousands of views expressed, you recommended a number of further changes to the draft terms of reference. You wrote asking that those changes be made. They were all accepted in full.

So on 21 July the Inquiry was formally opened, and you announced the decision to conduct the Inquiry in modules. This module concerns of course resilience and preparedness prior to the pandemic, but I need to say just a little bit more about the overall width of the Inquiry to show that this module forms only one part of it.

Module 2. The provisional outline of its scope was published on 31 August. It will look essentially at the core political and administrative governance and decision-making in the United Kingdom concerning the high-level response to the pandemic from January 2020 onwards. It will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet as advised by the Civil Service, senior political scientific and medical advisers as well as relevant Cabinet subcommittees.

It will examine Government structures and bodies concerned with the response, the initial understanding and response to the nature and spread of Covid, the Government’s initial strategies, the decision-making relating to the non-pharmaceutical interventions, the national lockdowns, the restrictions, the circuit breakers, the working from home, the orders to reduce person-to-person contact, social distancing, and so on.

But also their timeliness and reasonableness, including there likely affects had decisions to intervene been taken earlier or differently.

Importantly, the degree to which Government looked at and considered the risk on vulnerable groups and others. Access to and use in decision-making of medical and scientific expertise, data collection and modelling, public health communications in relation to steps taken to control the spread of the virus – this is transparency of Government messaging, the use of behavioural management and the maintenance of public confidence. All those as I say are for Module 2.

This Inquiry is obliged under section 27 of the Inquiries Act as well as its terms of reference, as I’ve said, to consider both reserved and devolved matters in respect of Scotland, Wales and Northern Ireland. So having considered the picture in Module 2 from a UK-wide and also English perspective, Modules 2A, 2B and 2C will address the same overarching and strategic issues from the perspectives of Scotland, Wales and Northern Ireland. But obviously, on account of the fact that an Inquiry has been established in Scotland to look at matters devolved to the Scottish Government, your intention in relation to Scottish matters has been to seek to minimise any duplication that might arise, and so a memorandum of understanding is already under discussion to guide both Inquiries in their communications with document providers, potential witnesses and other sources of information material to ensure the minimum degree of overlap.

Module 3. It will examine the impact of Covid and the governmental responses on the healthcare systems generally across the United Kingdom. It will investigate the general impact of the pandemic on the healthcare systems, governance, hospitals, primary care, NHS 111 services and ambulance services. It will address issues such as the use of Do Not Resuscitate orders – rationing of critical care, capacity, triage systems, the shielding and care of extremely vulnerable, NHS backlogs and waiting times and the treatment of those suffering from long Covid.

Later modules, details of which will be published in the coming months, will address very broadly system and impact issues across the United Kingdom, vaccines, therapeutics, the care sector, Government procurement and PPE, testing, trace, Government financial responses. The impact modules will look at health inequalities and the impact of Covid on the education and business sectors, children and young persons, on public services and on other public sectors. Hence, my Lady, the unprecedented and ambitious nature of this Inquiry.

Module 1’s scope. The document setting out the provisional outline of scope for this module has been published on the Inquiry website and I don’t propose to read it out. The outline of scope document was expressly designed to be provisional so that Core Participants could see that they were being invited to comment on its further development as, indeed, they have.

In essence, the module is concerned with high level pandemic resilience, preparedness and planning across all four nations.

It will examine whether the correct structures, bodies, procedures and policies were in place at UK and at regional and national levels and look at their history, development, co-operation and performance.

In terms of enquiring into pandemic planning, this will include examination of the forecasting processes, the extent to which past knowledge of actual events and simulated exercises were learnt from. The degree of readiness preparation and the general resources that were available.

International comparisons will be drawn, and the funding capacity and maintenance of emergency planning and public health structures examined. This will include any impact arising from the United Kingdom’s departure from the European Union.

Evidence will be given in relation to the planning for future pandemics, including the forecasting of new Covid-19 variants, the other viruses of concern, and diseases resulting from viral transmission from animals.

But that scope, my Lady, although it introduces a wide range of areas, cannot at this stage be readily determined in detail. It’s neither practical nor advisable to identify now all the granular issues that will be addressed at the Module 1 hearing, let alone the questions that will arise forensically.

Concern has been expressed by one Core Participant that the scope of Module 1 has been limited in some way by the wording of the decision letter in the case of that Core Participant to grant it Core Participant status. May I say therefore that the reasoning in that letter did not and could not purport to reflect the entirety of the Module 1 scope.

My Lady, the issues will obviously be further developed once the responses to the majority of the Rule 9 requests for evidence have been received and analysed. But a number of very helpful suggestions have been made by the Core Participants concerning scope by way of identifying changes in the direction or specifying particular areas for investigation in Module 1 and I know, my Lady, that you and the team would wish to reflect on them all but may I just make a number of points as to how we propose to do so.

We will approach those suggestions from the Core Participants with an open, indeed eager, frame of mind. It serves absolutely no purpose whatsoever for us to expend the time, energy and cost in designing and holding a Module 1 public hearing only for issues of real importance not to be explored.

Secondly, this is only the first module. It is designed to investigate the general state of the United Kingdom’s resilience and preparedness or lack thereof. It cannot be used as a vehicle to front-load others issues better suited for scrutiny later in the Inquiry.

Third, that scope document is meant only to be a generic guide. As I’ve said, the actual scope and the issues in question that will arise for scrutiny will be far better assessed by reference to the forensic trawl that is this process of gathering up documents, statements and information from Core Participants, from evidence providers, holders of documents and many, many more entities.

That process is designed to sweep up a significant body of documents and statements from which the issues can then be identified and developed.

Lastly, my Lady, as you said in your opening statement in July and again today, with such a wide scope, the Inquiry needs to be ruthless in its selection of issues and relentless in its focus on matters of real importance. It is simply not possible to examine every issue, even if thematically within the reach of Module 1, or to call every witness relating to every event, issue or major decision.

What is instead required is a carefully judged assessment of what really matters.

I’ve mentioned the Rule 9 requests. May I say a little more about them. Since the start-up date of 21 July, a huge amount of work has been done in terms of resourcing and staffing the Inquiry, setting up the legal teams, identifying hearing venues, responding to public communications, and setting this module on its way. The Inquiry has also identified and published the scope documents, the outline of scope documents, as I have said, in relation to modules 2, 2A through to 2C. It’s also prepared the groundwork for the later modules which will follow in quick succession, and there is also then the Listening Exercise.

But, importantly, the Inquiry has already issued formal requests for evidence pursuant to Rule 9 of the Inquiry rules to the following organisations which appear to us to have played a central or significant role in relation to the United Kingdom’s resilience, plans and preparedness, the Cabinet Office, the Department for Levelling Up, housing and Communities and the Department of Health and Social Care.

My Lady, those Rule 9s are lengthy, complex and wide-ranging. They request information and documents (including policy documents, agendas, meeting notes and minutes) and the identities of key figures and decision-makers (including ministers, civil servants and advisers) relating to relevant decision-making on preparedness between June 2009 when the World Health Organisation announced the scientific criteria had been met for an influenza pandemic, what became known as the swine flu pandemic, and 21 January 2020, the date upon which the World Health Organisation published its Novel Coronavirus Situation Report number 1.

The areas of enquiry range widely. They have been made, or the enquiries by way of Rule 9 have been made, in relation to development and functions of relevant organisations; resources and levels of funding; the monitoring, and communication of new and emerging infectious diseases; the duties and responsibilities under the Civil Contingencies Act 2004; policies and operational strategy, including those set out in various pandemic preparedness strategy documents and reports.

We have sought explanation and analysis of the Government’s forecasting of influenza and high-consequence infectious; diseases of institutional learning and the simulation and real exercises from Exercise Winter Willow in 2007 through to Exercise Pica in 2018.

We have sought information relating to public health services and resources, the stockpiling of essential resources, co-operation between Government and devolved administrations, regional local government, and expert advisory groups and public sector bodies.

We’ve sought the disclosure of key actions, activities, initiative, policies and publications. In the next few weeks Rule 9 requests will also be sent to the United Kingdom Health Security Agency, his Majesty’s Treasury, the Welsh Government, the Government of Northern Ireland and the Scottish Government. The Trades Union Congress has helpfully suggested adding the Health and Safety Executive, and we will reflect on that.

The Rule 9 requests are being issued on an iterative basis as part of which further requests will then be made of the recipients focusing on particular issues or topics. We will issue further Rule 9 requests on a rolling basis to other organisations.

Some have asked in their written submissions whether we will disclose the Rule 9 requests themselves, the requests made of all those various entities. In my submission, my Lady, that is, however, neither required by the rules nor established by past practice. It is, we suggest, furthermore, not practicable. Given that all or almost all the Rule 9 requests will be superseded and built upon by further iterative requests from the Inquiry team itself, disclosure of each Rule 9 request serves we suggest no purpose.

Some Core Participants have raised the issue of position statements by state bodies and organisations. So, my Lady, the proposition before you in some of the written submissions is that position statements, if ordered, would assist you by enabling you to target further disclosure, hone the expert evidence and tailor the hearings to those areas that are actually in dispute or are unclear.

We suggest, with respect, however that the foundational principle that this argument is based upon may not be correct in the circumstances of this Inquiry. You will of course be reflecting on all the submissions. But may I introduce a note of caution. Position statements are in effect a form of pleading, but they are not a required feature of Inquiry proceedings which are of course not adversarial.

In any event, we rather doubt whether such statements would help to narrow issues and, therefore, save time and cost. Written clarification of a document provider’s position whether in a position statement or otherwise, can really only be done at a point when that entity is sufficiently sighted on the issues, the disclosure that enables their proper examination, and their own position. So to start the Inquiry process with a position statement is to jump the gun.

Asking entities to commit to a committed position at an early stage is therefore liable to lead to delay in the commencement of the process because, in this complex forensic picture, it’s likely to take months for them to be able to assemble sufficient documentation for them to identify their position, then form it and then commit to an inalienable position on paper.

My Lady, this Inquiry is in truth an inquiry into myriad decisions and complex decision-making. It’s not an inquiry into an easily identifiable event or action as to which document providers and decision-makers might be expected to have a pellucid position. It’s not an inquiry limited by a single event, a short passage of time, a place, or a limited course of Government or State conduct, a crash, air crash, an explosion, a shooting or a single terrorist attack. Nor is it limited by place (as with the Sizewell Inquiry or the Inquiry into the Bristol Royal Infirmary Hospital), or by connection to a person, or even a particular decision or policy or course of behaviour (such as the Infected Blood Inquiry or the Post Office Horizon Inquiry).

You will be scrutinising Government decision-making made by a very significant number of bodies and individuals over many years, even in this module a complex and multi-layered task and, therefore, it simply doesn’t readily lend itself to the preparation of position statements.

But may I say that you know, my Lady, that you will and you have already started seeking corporate witness statements as well as making those more directed requests of which I have spoken, and those statements will naturally reflect the particular entity’s position but they will have a far better foundation.

I then turn to disclosure. There is no express requirement for disclosure contained in the Act or the Rules. The reason why of course inquiries give disclosure is because the obligation arises from your overarching obligation to act fairly under section 17(3) of the Act, and Core Participants must have disclosure of relevant documents in advance of the public hearing to enable them to contribute meaningfully to the process.

Plainly, to make sure that the Inquiry is in a position to disclose relevant material, we will be casting our net more widely when gathering it in. The Inquiry does this by asking document providers for material that is likely to be relevant to the issues that will arise in the course of the module. Therefore, it is neither necessary nor proportionate for the Inquiry to disclose every document that it receives or every request that it makes or every piece of correspondence. That is not required, and it would hinder the Inquiry in the performance of its functions.

In particular, the documents received from document providers can’t be provided without that sift for relevancy and for utility. It would be a derogation of the Inquiry’s functions simply to pass everything on to the Core Participants.

But may I say that, as an Inquiry team, we will of course be giving regular disclosure updates on which we can report on the progress which is being made. We don’t propose only to provide Core Participants with documents relevant to them; all Core Participants will receive the same documents for the particular module.

Third, we’ll provide all relevant documents that the Inquiry’s received subject to a de-duplication exercise and appropriate redactions in accordance with the redactions protocol.

But lastly, we don’t propose to provide a document protocol. I have set out our general approach, and the provision of protocols for protocol’s sake assist no-one.

My Lady, it’s likely that we’ll be making disclosure in tranches as opposed to documents being made available as soon as they are provided to us.

Lastly, some Core Participants have requested that document providers sign a statement explaining how they’ve secured the preservation of documents, how they’ve conducted their own searches, and how they have satisfied Limited themselves that they’ve complied in full with their duties. I can say that each provider has been asked or will be asked to provide an account setting out details of how the documents were originally stored, the search terms used or other processes used to locate documents, and the nature of any review carried out by them.

Where we have queries or concerns about those procedures, we will raise them and we will pursue them and of course, as documents are disclosed and gaps identified, we will seek further documents.

I should also observe that the Inquiry’s already taken steps to ensure the preservation of documents. On 20 January, the Secretary to the Inquiry, Mr Ben Connah, wrote to the Director General Propriety and Ethics of the Cabinet Office to request the retention of records across the entirety of the Government. On 8 February, the Director General replied setting out the steps that had been taken to ensure records relevant to the Inquiry were being retained across the whole of Government.

There are also provisions in section 35 of the Inquiries Act which make it an offence if any person does anything to alter or distort a relevant document or prevent any relevant document being produced to the Inquiry or intentionally destroys, suppresses or conceals a relevant document.

Lastly on this topic, some Core Participants seek an obligation or they seek from you the provision of a list of undisclosed documents (that is to say, documents which we, the Inquiry, will not be providing to the Core Participants). It is of course a matter for you, and you will reflect on that submission, but we ask rhetorically: to what end? It is for the Inquiry to determine whether proper disclosure is being made, whether further areas are required to be explored, and whether there are more documents required to be produced. The production of a document setting out everything that has not been disclosed would simply require an immense amount of further work to little end.

No final decision has been taken as to which electronic disclosure system will be operated by the Inquiry to provide those documents to Core Participants. We anticipate, my Lady, that disclosure will commence before Christmas.

Experts: again, a topic that has fallen within the scope of the written submissions which have been provided today.

The Inquiry will obviously review and provide a vast amount of national and international research material relating to pandemic preparedness and make that material available.

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

They will naturally have the appropriate expertise and experience for the particular instruction, and they will be selected on the grounds of their independence and objectivity.

The identification, however, of suitable experts is not at all straightforward, given the public ventilation by many of them of the areas of expertise in which they practice, the fact that many of them were themselves involved in the events under investigation, and the fact that there is a distinct lack of unanimity on many matters. But we have already compiled a list of provisionally suitable experts for Module 1. Their reports when prepared will naturally be shared with the Core Participants, and they will be published on the Inquiry’s website.

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

My Lady, we set out in the note from counsel to the Inquiry a number of specialist topics on which the assistance of expert witnesses will be sought for Module 1. I don’t propose to read them out but they cover such areas as the identification, history and funding of those structures and bodies at Government devolved administration local authority level concerned with risk management, the changes to those structures and bodies, their funding, their resourcing, the identification of international bodies concerned with risk management, and the comparative examination of their performance with our own.

The identification, history and funding of UK public health bodies, their development over time, their readiness and preparation, and also forecasting of epidemic trends and the transmission of diseases.

May I express my gratitude to those Core Participants who have already expressed interest in that topic, and have offered other suitable areas for exploration. We’re particularly grateful to the Department of Health in Northern Ireland that the early assistance in the identification of potential experts.

But, my Lady, the guiding principle must remain that it is for the Inquiry to investigate the appointment of experts, and the final decision of course on who they will be is absolutely a matter for you.

The letters of instruction setting out the parameters of their work and the questions for their consideration will be prepared, and the questions that they will be asked to address will be made available to Core Participants in advance of the reports being finalised so that Core Participants will be provided with an opportunity to provide observations on them.

My Lady, may I then turn to the Listening Exercise, a vital part of your Inquiry. As foreshadowed in the terms of reference that you recommended and which were accepted, the Inquiry is designing and setting up a process by which the experiences of bereaved families and others who have suffered hardship or loss as a result of the pandemic will be submitted and listened to or read, and then analysed and summarised before being provided to the Inquiry teams and the Core Participants for use in the public hearings.

This will allow the Inquiry to understand the experiences of the pandemic from across the whole of the United Kingdom, including those most affected, and those whose voices are not always heard. It will provide an opportunity for people to tell us about their experiences without the formality of giving evidence or attending a public hearing. The process, my Lady, I will reach vastly more people than could ever be accommodated by the giving of witness evidence in a public hearing.

So the Listening Exercise will hear or receive accounts from a broad range of people including the bereaved and those whose health has suffered from the disease, those living with the disability or health problems, the clinically vulnerable and those whose family life, education, jobs and well-being and livelihoods have been significantly affected. Those summaries and the accompanying analysis, not just data and numbers, will be fed into the public hearings as written evidence and inform the Inquiry’s understanding.

My Lady, this is scarcely marginalisation of those who have suffered. The details of the current plans have been set out in a note from Mr Martin Smith, and that will be shortly available on the website. But I need to emphasise that that mass of information needs to be properly assimilated and understood if it is to prove the worth that we expect it to be. It is designed, this process, to take the accounts from tens or possibly hundreds of thousands of people and, bearing in mind the importance to the Inquiry’s architecture of that process, and to ensure it’s robust and easy for anyone who wishes to participate, in the Listening Exercise will take some time to design and test. But the procurement of specialist assistance is under way.

As part of that work, your Inquiry, my Lady, I will start trialling different approaches for the Listening Exercise shortly. That will include later this year an online platform which will invite people to share their experiences and then, later in the winter and in the spring, targeted face-to-face sessions with some selected groups from society. Over time, the trials will develop and increase in scale until the exercise is running at full capacity.

So that process is an integral part of the Inquiry’s process. That evidence will necessarily be anonymised – how could it not be? There will be no need for legal representation for the participation and it’s not intended the Inquiry will fund legal assistance. But the material which comes from that exercise will go to the heart of the Inquiry’s procedures.

Some of the Core Participants have asked perfectly properly some questions about the process. Who will be doing the listening? What qualifications, if any, will the listeners have? What training will they have? How will the experiences be recorded? This is naturally all to be worked out but, my Lady, may I say for the benefit of those listening that a great deal of time, energy and resource is already being devoted to ensuring proper correct answers to those questions are made.

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

My Lady, your team is already working on this to find the right solution, and it has already reached out to the representatives of those most affected to develop a commemoration that is suitable and captures the right feelings and emotions.

Then the sensitive and difficult issue of the evidence of individual deaths and pen portrait evidence. Paragraph B of the terms of reference by which the Inquiry is bound provides that the Inquiry will not consider in detail individual cases of harm or death. That is because, my Lady, the core function of this Inquiry is not to enquire into the direct circumstances of the tragic deaths that occurred, but is instead to examine the pandemic that led to those deaths and the response to the pandemic, in order to ensure that in future death and suffering and harm cannot occur on such a scale again. So it is necessarily an inquiry into high-level decision-making and systemic issues and failures.

Moreover, given the breadth of the Inquiry’s remit and the need to make timely recommendations about the pandemic, the receipt of oral evidence at public hearings about individual’s losses or the circumstances of individual deaths is impracticable. It would also require the most invidious of decisions amongst the hundreds of thousands of deaths who should be called upon to give evidence.

But, as you have said and I emphasise again, that is not to say there will not be evidence from individuals surrounding the circumstances of the deaths of loved ones as part of the later modules in relation to the circumstances leading up to death, the use of Do Not Resuscitate orders you have mentioned, but also there are any number of issues which may be illuminated by the giving of individual evidence but only because it’s relevant to the systemic flaws that we believe may have existed. So evidence relating to the NHS 111 system or the triage system or mortuary arrangements or end-of-life care are all wider issues to which such evidence may well be relevant.

The Inquiry has also received submissions from Bereaved Families for Justice groups asking for extensive pen portrait evidence to be heard. That is to say, statements or other materials such as videos relating to the lives of the persons who have died. My Lady, we recognise the value that this can bring in an inquest or an inquiry performing the role of an inquest, and we acknowledge the heart-felt submissions that have been made as part of that request. But this too is impracticable. It is also not required by the European Convention on Human Rights because of course effective participation is a procedural guarantee which doesn’t prescribe the introduction of any particular forensic material by specific route.

But far more importantly, as it happens, the Listening Exercise that you have ordered to be undertaken will be a far more extensively developed process by which individuals may have their accounts heard and considered.

But lastly in any event, may I say that you have also asked that consideration be given to alternative ways in which individual tragedies can be publicly but briefly recognised in the module hearings there. I will be more on that anon.

So, my Lady, before you hear from the legal representatives of the Core Participants who wish to make oral submissions, may I conclude by saying that there will be a further preliminary hearing for Module 1 early in 2023 in London, on a specific date and venue to be confirmed, and it may be that a third preliminary hearing will be required, but it is simply too early to say.

The public hearing in this module will take place in London in May 2023. It will provisionally last four weeks but, as with every aspect of this hearing process, it will be kept under review. Notice will be given of everything that is required to be so notified. It may not always allow as much time as the Core Participants would like. I’m sorry for that. We will do our best but time is against us. There is a huge amount to be done.

The final point, my Lady, concerns more prosaically the section 40 determinations on the subject of those applications. Some have already been received but more can be expected from the Core Participants who are not amongst the Bereaved Family groups who have not yet made them, may we invite you to ask that those applications be filed but perhaps within 14 days.

My Lady, that concludes my opening remarks.

Lady Hallett: Thank you very much, Mr Keith. I have been asked to take a break for the benefit of the stenographers or transcribers, so I shall return at 11.30. Thank you very much.

(11.14 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Weatherby.