3. Opening Statement by Mr Weatherby

Mr Weatherby: Good morning.

I represent the Covid Bereaved Families for Justice group which came into being soon after the pandemic struck our shores, and was set up as a campaigning group by those who had lost loved ones to Covid and what they perceived as the lack of preparedness and response to it.

It started as a Facebook group and it currently has more than 6,500 supporters, some 3,225 of whom have signed up as members of the group, which simply means that they have a greater involvement as part of it.

The membership is spread across England, Scotland, Wales and Northern Ireland, and the group is very much a UK-wide one. It’s administratively organised as a limited company with directors who are all bereaved family members. Broudie Jackson Canter are instructed for the Covid Bereaved Families for Justice group, and Elkan Abrahamson is the recognised legal representative for the Inquiry, and I lead the central counsel team.

Family members of those who died in the devolved nations and jurisdictions have organised into branches. We have a fully collaborative arrangement with the Northern Ireland families and the Northern Ireland legal team, but there’s a difference of view with some of the families in Scotland and Wales which the group and the families are currently trying to resolve. It appears that there may be the emergence of some autonomous groups as well.

The Covid Bereaved Families for Justice group campaigned for this Inquiry and for devolved inquiries right from its inception. For a long time the Government resisted but eventually, as Mr Keith has already said, in May of last year the former Prime Minister announced that there would be a statutory inquiry. He did so at a time that the families, through the Covid Bereaved Families for Justice had indicated that they were to pursue judicial review proceedings if he did not.

This is already public knowledge, but I make it clear now to demonstrate just how much the families want this process to succeed and their intention to participate effectively within it.

From the announcement in May of last year, there was then a further delay of eight months in appointing you as Chair, and more delay in providing draft terms of reference and then in formally setting up the Inquiry in June of this year.

The resistance in acceding to an inquiry in the first place and the subsequent delays have caused substantial frustration to the families and their wish to expedite the Inquiry in order to try to prevent future deaths, in particular by the timely recommendations that may follow from the modules that you have announced.

However, within the period from when you were appointed, the families recognise that you instituted the consultation on the terms of reference, indeed, the very same day the draft was provided to you by the Prime Minister. Your counsel has already noted that the consultation involved face-to-face meetings with the bereaved in, I think, 11 locations. But what is perhaps also worth noting is that those meetings were facilitated by the Covid Bereaved Families for Justice group and, indeed, I think all of the families that you met were part of the group at that time.

It’s clear from the recommendations made to the Prime Minister that you took account of many of the views expressed to you from the bereaved directly and, indeed, from submissions made on behalf of the group in writing at that time which followed those consultations.

Again, I mention all of this as it demonstrates that the Inquiry well understood from the outset the importance of the bereaved and their effective participation in the process. They are of course by no means the only persons or groups with a keen interest in this process and I readily acknowledge that. However, they are front and central to it.

Again, the consultation indicates the clear commitment of the group and the families to collaborate in ensuring the Inquiry reaches its goals.

The importance of hearing directly first-hand from the bereaved is a theme, of course, I will return to in due course.

However, as you know from our written submissions and prefaced by Mr Keith helpfully this morning, we have raised concerns about the engagement of the Inquiry with the Covid Bereaved Families for Justice team since the consultation. We’ve attempted to engage in writing in submissions on 1 April regarding process and, in particular, regarding the evidence of the bereaved themselves on 30 June, and through requests for information about the intentions of the Inquiry regarding, for example, a central matter of importance at the moment to the families the Listening Exercise.

Likewise, the provisional scope of Module 1 was handed down without any real discussion about what it might include. Now, of course we recognise we can and we will make submissions about both issues today, but our collective experience as set out in the written submissions is that much more can be achieved by dialogue, a two-way street between the teams prior to positions hardening, documents being published, and decisions being set out by the Inquiry in writing.

There has been reference by Mr Keith this morning to the fact that has been extensive contact between the teams; there most certainly has. I do not wish to be misunderstood here, and I do not suggest that we have a poor relationship with your team; we don’t. We want to make it work.

As far as my recollection is concerned, we’ve had four meetings with your team. Mr Keith has indicated there’s a willingness to discuss what we raise. With respect, that is an identification of the point I make. We seek a two-way street. We seek the Inquiry to come to us as well as us coming to the Inquiry to discuss important matters which either directly engage the bereaved or which the bereaved have a central position in trying to assist the Inquiry, for example, the scope of the modules and what should be included.

That does, with the greatest of respect, identify the problem that this idea of dialogue has to come from both sides and to some degree that is what’s missing at the moment.

I’ve explained the position of the group in some detail this morning, mindful that the wider world and media are watching, to emphasise that we do not want to be some kind of official opposition within this Inquiry; quite the opposite. Neither do we seek special treatment; we don’t. We have made it persistently clear that any dialogue that is had with us we expect will be had with all of the other Core Participants and indeed others. That, we perceive, is the role of independent counsel and independent solicitors instructed for the Inquiry.

The better dialogue we seek should be undertaken across the board. I will undertake from our side to do everything possible to make that work. The families have no plan B, and most certainly neither do I, and I hope this particular submission is received in the spirit within which it is made.

One further point before turning to the agenda items. We note that the PM has still to nominate the panel members who were promised to assist you in the Inquiry. We made submissions about that issue many months ago, and how it’s an opportunity to enhance the decision-making process by expanding the range of life experience and the diversity of those right at the centre of it. We obviously recognise this is a matter for the Prime Minister, but it’s a matter directly affecting the Inquiry and its progress. So we would hope that you would join with us in asking the PM to resolve that matter that was promised some ten months ago.

The agenda. I’m only going to address the matters which we want to make submissions on, so if I miss something it’s because we don’t have anything to say at this point.

In respect of Module 1, we respectfully commend the fact that preparedness this starting point for the Inquiry. That was very much our position too from the outset and it’s very much the logical place to start and, indeed, more than that, it may be one of the key areas where the Inquiry can make a real difference and relatively quickly through recommendations.

We do understand that the scope that was published was provisional and a first iteration, but we set out in paragraph 8 and following in our written submissions three particular concerns which we do so to assist the Inquiry, the first of which is the treatment of devolved issues within Module 1; the second is the disproportionate effect of the pandemic on black and brown communities, other ethnic minority communities, and other sections of our communities who are otherwise more vulnerable because of personal characteristics; and, thirdly, the social care and care home sector and places of detention.

It may be on this subject that none of our submissions on these issues are too controversial but, before I make them, this is again rolling back an example of perhaps the way that dialogue could enhance the process and, as we move forward, if the Inquiry team could discuss with Core Participants the scope of particular modules, perhaps with lists of issues provisional list of issues, draft lists of issues, then the scope documents announced by the Inquiry would be fuller and all of us would be actually engaged in that process. Then the scope for further submissions would be limited to matters which are controversial or not agreed or, perhaps, arise at a later point.

Dealing with the three issues briefly, with respect to devolved issues, we don’t understand why a different approach is being taken in Module 1 as cared with Module 2. It appears to us that only through dealing with devolved matters in a dedicated manner can the Inquiry ensure it covers each devolved nation or jurisdiction fully, and recognise that each is unique, which we perceive as the approach taken in Module 2. Only through undertaking the analysis in that way can the Inquiry be sure of then determining how the devolved structure’s provisions decisions on preparedness fitted together with the overall UK structures, provisions, decisions or, indeed, that it did not.

I know my learned friend from the Northern Ireland team, and no doubt the others with respect to Scotland and Wales, will also make submissions on this point, but we simply flag at this point that we raise an issue about understanding how the devolved issues in relation to preparedness will work and the current thinking on Module 1, and request some clarification about that.

As you will recall, the general issues of discrimination and the disparity of effect of the pandemic on certain black and brown communities and other minority ethnic communities was raised persistently during the terms of reference consultation phase by families, and so too the position of other vulnerable sections of the community, the elderly, those with mental health issues, people living with autism or developmental disorders, those with clinical vulnerability, those with physical disabilities and those in detention.

Following those concerns, you made recommendations as to the prominence within the terms of reference with which those issues should be treated, yet they are not apparent within the provisional scope for Module 1 and, with respect, we think they ought to be.

Proper preparedness should have fully included these considerations, and the Inquiry should, in our respectful submission, investigate why they apparently did not or did not do to a sufficient degree. Pandemics are occasionally said to be indiscriminate but that is of course not right. Age, gender, race, disability, co-morbidities are all obvious potential factors, so too are discrimination disadvantage, poverty and the need for people to remain in post as key workers or the existence of the gig economy. All of these are relevant and ought to have been considered in terms of preparedness.

Those who were responsible for preparedness should have taken clear account of discrimination and the differences across communities, the fact that public health and inequality and social deprivation are linked, and the fact that many different sections of the communities required different provision to protect them and, as with the terms of reference, we submit that this should be made clearer within the scope of Module 1.

Further, I’ll come back to these very briefly later, but at the moment we suggest, propose, submit that issues of disproportionate effect and discrimination and their relation to preparedness is likely to be an area where you will be assisted by expert evidence, and that’s a matter that we intend to address you more fully on in due course.

The third point I can put very quickly. The provisional scope makes reference to public health services and to economic planning but not to social care or care homes or, indeed, places of detention and, again, we hope that can be made explicit also. But again I make the general point that it would be helpful if we could have a dialogue about scope before it’s set out in public.

Rule 9 and position statements – and I’ll deal with these submissions together, if I may. At paragraph 13 of the written submissions, we made reference to the efforts which the Inquiry has taken to date to gather evidence as set out in the counsel’s note for this hearing but very fully by Mr Keith and very helpfully by Mr Keith earlier today.

We made three points about this. Firstly, all material providers should be asked to provide all potentially relevant material so that the Inquiry can determine – the Inquiry – what is actually relevant to its investigations in line with its terms of reference, and the providers should be reminded of their duty of candour. This may seem a trite and obvious point but, in order for public confidence to be maintained, it must be made clear that providers, in particular public authorities, must take a wide approach and not tailor disclosure to their own ends or sit on their hands and only provide material which has been expressly requested.

I note the efforts to address this in the detailed Rule 9s we’re told have been made but, in our submission, history shows that this is something which needs to be made express clear and in terms.

Secondly, if Core Participants are to effectively participate in evidence-gathering, particularly in an inquiry as wide-ranging as this and one where we respectfully commend your approach in driving it forward quickly, we submit that Rule 9 requests should be disclosed in order that we can see not just a summary, a helpful summary, but not just a summary, where we can see what has been requested, and it will allow us to suggest other avenues or other material that we may just have spotted which your team may not, however diligent and effective they are.

We don’t actually think this is a radical submission; it’s transparent. It allows all of us to collaborate with the Inquiry in progressing its work expeditiously, and it builds confidence between us. The disclosure would be subject to the undertakings so we can’t see a difficulty in taking this approach. We have flagged this up with your team in advance which I think may be why Mr Keith, again helpfully, addressed it. But we don’t think – well, first of all, we do think that in the past there have been occasions where Rule 9s have been disclosed. We can’t think of any legal reason or any practical reason why they shouldn’t be disclosed and, therefore, we ask you to consider that submission and positively do it.

The third point we have raised is in respect of what have become known as position statements. Now, position statements can be cast as Rule 9s or otherwise, and we don’t in fact think it matters, but we submit that the Inquiry should request from State and organisational Core Participants and other providers, corporate or institutional statements signed off at the highest level setting that organisation’s narrative of events so far as it was involved or so far as it observed the conduct of the others.

Now, I pause at this point to address a matter that was addressed this morning about slowing the process down or being adversarial. That is not what we are submitting here. We absolutely think the opposite is the case with position statements. We do not think that position statements with public authorities, in particular, particularly in an inquiry of this nature, needs to wait until there is significant disclosure.

A position statement is not asking Core Participants to do, with respect, your job; it’s asking them to state what they did. It’s effectively putting a narrative burden, an evidential burden perhaps in more legal terms, on to them rather than you and your team. So, in terms of slowing the process down, absolutely the opposite, because it would put an onus on the Core Participant to identify everything about their own conduct, their own narrative, rather than simply others having to search within their domain for it.

In terms of being adversarial, we respectfully ask: how is asking a Core Participant to assist the Inquiry by saying what did or did not happen adversarial? Again we say it’s part of a proper institutional inquisitorial approach.

The statements that we seek, the position statements we seek, would include the responsibilities, the legal and regulatory framework within which the organisation works, what did and didn’t happen so far as relevant to the terms of reference in the particular module, and what failures and what good practice it can identify to assist the process.

It should identify relevant material and the issues on the terms of reference to which it applies. In an inquiry as huge as this one, this approach would be key, in our submission, to cutting to the centre of the issues, and it avoids the Inquiry having to identify the haystacks, never mind the needles that might be lying within them. This has been an approach taken by inquiry Chairs recently as we’ve set out in writing from paragraph 21 onwards. The general approach was extensively looked by the working group in the Law Reform Group Justice, report of which expressly endorsed the approach of using position statements and, importantly for my submission certainly, is that three of your fellow senior judges who have very considerable experience in this area was central to that justice process and that justice report: Sir Robert Owen who chaired the Litvinenko Inquiry; Sir John Goldring, the coroner in Hillsborough; and Sir Peter Thornton, who was a previous chief coroner.

Given the number of issues, the number of potential material providers putting there is initial burden on them to identify roles, issues, narrative, what may have gone wrong, is, in our submission, not only the right approach, but it’s a common-sense starting approach and it should expedite the Inquiry’s work. It’s an approach which has been deployed. It was deployed with great effect in the Manchester Arena Inquiry and to some effect in the Grenfell Tower Inquiry.

From the gathering of evidence, can I now briefly turn to the disclosure of the material to Core Participants. Paragraph 49 of the Counsel to the Inquiry’s note there is reference to:

“Focused and proportionate disclosure to Core Participants to allow them to effectively participate in the hearings.”

Some discussion about that was had earlier. I say candidly I don’t know what that means. I don’t know what test is set out there at all. What is it? Who would apply it? Practically, we assume, we hope, the material will come into the Inquiry, undergo a potential relevance test and no doubt a screening for material which should properly be taken out (personal details and such-like) and then disclosed on an ongoing basis in tranches. Rhetorically, how is the solicitor or counsel within the Inquiry team undertaking this task day-to-day, or more likely a small army of solicitors and counsel, given the volume here, how are they, how are the individuals there to do this without a clearly set-out test?

Given that there will be electronic disclosure, there’s no greater burden in adopting the approach taken in other inquiries and inquests and that of disclosing all potentially relevant material, subject to narrow exceptions.

I won’t repeat them, but we set out five reasons why this is the appropriate approach from paragraphs 29 of our written submissions. But what they amount to in summary is proper transparency, consistency of approach across the material, and facilitating the effective participation of Core Participants.

If Core Participants are only given a part of the evidence, how is it that they can properly engage within the Inquiry?

Now, we do obviously understand that there will be a substantial amount of material generated. We do understand that the Inquiry must apply a proper relevance test here. However, the approach currently indicated appears to reduce the disclosure process to an arbitrary one, without any consistency or proper standard or test.

Experts. We note that the indication that you will consider suggestions as to experts on the questions they are asked to address will be made available prior to finalisation of reports but, again, rolling back to dialogue, it will be helpful if we could have more of a two-way street as the Inquiry progresses on this point. Effective participation again means Core Participants, all of us, collaborating with the Inquiry in searching for evidence and answers. It appears to us and w,e, perceive it is the approach of the Inquiry that there will be the need for significant areas of expert evidence, and we agree with that.

We also agree with submissions made by other Core Participants that in an inquiry like this it will be impossible – not just difficult but impossible – to find experts who have not already expressed views. I think those are the submissions of Mr Beer, in particular, for NHS England. There is the need for a balancing of groups of experts, which I think he’s putting forward and with which we most certainly agree, and I will endeavour to assist in the identification of relevant experts.

The Listening Exercise. Of course this is the area of most current concern to family members, as you know. In earlier submissions and those for today, we’ve identified that there are three key areas of evidence which the bereaved can and should provide to the Inquiry, commemorative evidence regarding their lost loved ones, evidence of circumstance of death, and evidence regarding the effect of loss on the bereaved themselves. There are, of course, other categories to which particular family members can contribute, but these seem to be the main three strands and we made written submissions in April and June regarding those.

We haven’t had a substantive response or again any real discussion or dialogue about the submissions. The Listening Project or now the Listening Exercise appears to be passed as a parallel process. The bereaved learned from the Guardian about a tender process. How accurate that was I’ll leave others to say. But nevertheless the families were concerned to learn from the media about a tender process which apparently was directed at companies from a Government-approved list which may have played a role; some of them have played a role in Government messaging regarding the pandemic itself. Whether or not that’s an entirely accurate picture put across, it has caused real concern with the families.

If it is that the Inquiry is seeking a strategy, a plan, as to how to take the evidence of the bereaved and of course others, then within its own team it has quite a cohort of very experienced lawyers who have engaged in these processes before. So do we, and we absolutely want to collaborate with your team in coming up with a process that actually works and has the confidence and buy-in of the bereaved and allows the Inquiry to take this very important evidence in the best way possible.

But, if the Listening Exercise is to be a process outside of the Inquiry to which the bereaved and anybody else affected provides information about their experiences or, indeed, anything that they wish to contribute, that is a matter of some concern. The assertions at an early stage of this, before the process has even properly formed, so there will be no resourcing for the bereaved to receive help, assistance or advice from their representatives, is equally troubling given the experience from a wide range of inquiries and inquests about the necessity for it.

So far as I’m aware, there’s been no contact with Inquest, the charity, who for 40 years has been the central charity involved in dealing with the bereaved and their needs within such processes. May I just in passing declare an interest, because I’m actually a trustee of Inquest. But it would be essential, in my submission, to involve organisations such as Inquest, with their wealth of expertise in this area, to play a role in the formulation of any such process.

We have asked but we’ve not been informed as to who would take the information from family members or others and what their training or expertise would be. The information supplied, we’re told, will be analysed and a report will be provided, then considered by the Inquiry. Again we’ve asked but not been told who it is that would analyse such material or how or what training or expertise they would have, or, indeed, how the Inquiry would consider the report, or to what end or, indeed, how the Inquiry would quality control the taking or the analysis of such material.

The only guidance that we’ve had is that we might like to look at the process of the Truth Project in IICSA, the Independent Inquiry into Child Sexual Abuse. We note that Inquiry was primarily about institutional child abuse, not huge loss of life, so quite different. Anecdotally, we note that many who were involved, certainly professionally, were critical of that process, and it’s not clear to us, looking in at that process how the product of it was considered or whether it influenced the Inquiry itself. We’re not aware of any post Truth Project analysis of how or whether it worked.

We’re not aware of any other case where this approach has been taken. There’s reference in the Solicitor to the Inquiry note of 13 September that a research analyst company is proposed to be instructed to do this work. We’re not aware of this as a discipline or, indeed, of expertise or experience which would allow an outsourced company to deal with this.

Our submissions, on the other hand, refer to other inquests and other inquiries into mass fatalities. We’re not suggesting they are the same. The way in which the evidence of the bereaved has been considered in the past and to the current guidance of the Chief Coroner on pen portraits. We also made it quite clear and repeatedly so that we did understand that every process is different.

We understood that this Inquiry will not look at the circumstances of each death individually. How could it? We make clear that we took notice that the extent of loss of life to the pandemic means that a proportionate approach has to be taken here, and we set out preliminary proposals as to how that might be done with all that in mind.

Those submissions are being characterised as heart-felt and that they call for “extensive hearing of pen portraits”. The reality is that the submissions are based on what has worked in the past, but they are crafted to provide starting proposals, proportionate proposals which would properly engage and value the bereaved, but without having any disproportionate effect on progress or on cost for the Inquiry.

Now, of course, if those submissions are to be given further consideration, we would absolutely wish to do so, and we would engage fully with that, and we are happy to discuss as far as anybody wishes us to what we mean by the proportionate approach, because we are committed to the approach that you’ve taken into driving the Inquiry forward.

Mr Keith referred to (b) in the terms of reference to “listen to and consider carefully the experiences of bereaved families and others who has suffered hardship or loss as a result of the pandemic.” The Listening Exercise proposal, as cast up to now, in our respectful submission, does not do this. It outsources examination of the experiences and the evidence of the bereaved and of their loss, and it places them in a parallel ad hoc process outside of the statutory inquiry framework and it does, with respect, marginalise the bereaved and their voices.

I’m not going to repeat the points we’ve made earlier about how it should be done.

But, firstly, the Inquiry should facilitate the gathering of commemorative evidence, in our submission, from those who wish to do so. It should explore with us their representatives, how this can be done in a proportionate and fair way, and that the Inquiry process should include a proportionate amount of this evidence within it, not an extensive and disproportionate section which diverts the Inquiry.

A clear recognition that the Inquiry wants to hear and recognise at first-hand the loss and the experience of the bereaved. Hearing commemorative evidence at first-hand has no substitute. It cannot be provided through a parallel process. It can and should be done in a dignified yet proportionate fashion.

Moving on, in respect of the investigation of individual deaths, we’ve been assisted this morning by some further clarification, which we certainly hadn’t picked up before. We were going to ask you for a clear signal that a proportionate amount of witness evidence of those who can give direct evidence of circumstances of death would be called for key issues such as the 111 service and DNR. We are reassured by what has been said this morning that that is in fact your intention and that you will be hearing first-hand witness evidence of what actually happened to assist you in determining the terms of reference on those points.

Thirdly and briefly, we think that a similar approach, a proportionate amount of evidence should be taken to give the experiences of the loss on the bereaved themselves.

Finally, moving on and briefly to future hearings, I’ve already emphasised the families’ frustrations at the time to get to this point and the imperative that this wide-ranging Inquiry is kept within a proper timescale, a point we have repeatedly made and which we perceive is entirely in tune with your own approach. It should aim to take the shortest possible time but be as long as is necessary.

We respectfully agree that the Inquiry has set a realistic and proper start date for the hearings of Module 1, spring next year. However, we do flag at this stage our surprise that it’s thought that the whole of preparedness across the United Kingdom and within the devolved nations and jurisdictions can be dealt with properly within four weeks. Again, the first we heard of that was in CTI’s note. We’re not aware of how that estimate has been reached. All we ask at this stage is that the Inquiry revisits it and revisits it in time as more is known about the progress of Module 1.

Finally this: I reiterate the bereaved families recognise the work that has been undertaken to date. They campaigned hard for a full independent statutory inquiry and are fully invested in its success, and what they really seek is an indication that they will actually be placed front and central to the process, as you have promised, including through effective participation in the process, and that you will take due account of the submissions we made this morning.

Lady Hallett: Thank you, Mr Weatherby. I’m very grateful to the Bereaved Family organisations for their help in organising the consultation on the terms of reference and for introducing me to so many members of bereaved families. It was extraordinarily helpful and, as we have heard today, fed into my recommendations on the terms of reference.

I welcome also your offer of a collaborative approach, and I hope that always remains the case because we simply can’t get through this Inquiry, given the complexities, without that kind of collaboration.

I will obviously reflect on all the submissions that you’ve made this morning, but I just want to say a couple of things to put the record straight, because I know how distressed people already traumatised by grief can be if they see something perhaps misunderstood in reports.

There is absolutely no question that the bereaved will be marginalised, and I really don’t ever want to hear that expression again because, as I hope, those families to whom I spoke understand, and I hope your members will understand, I am determined that those who have suffered will be at the heart of this Inquiry. So any plans that we are developing as far as the Listening Exercise and commemoration are concerned will ensure that they are not marginalised.

As you know the intention of the Listening Exercise is, far from marginalising the bereaved, it is to extend the number of people who suffered and the number of bereaved who have suffered to many, many thousands more than we could do in the ordinary classic way of a formal hearing.

But the reason you haven’t had any answers to your questions is that the plans are in an early stage of development. You know, Mr Weatherby, how hard everyone’s been working to try and get this Inquiry underway and, as soon as we have sensible suggestions, we will of course make sure that your lay clients are properly consulted, and of course all the others, the other Core Participants and people who have suffered in other ways.

So I hope that you and those whom you represent are reassured by those comments that the bereaved will remain that heart of this Inquiry, as all the others who have suffered will do so too. So thank you for your submissions.

Right, who’s next? Mr Lavery.

Mr Lavery: My Lady, thank you. Just, for the record, the name is Lavery.

Lady Hallett: I’m so sorry, thank you. Please, if I make that mistake again, please correct me.