10. Response Statement by Mr Keith

Mr Keith: My Lady, thank you. There is obviously a great deal to reflect upon and, my Lady, for you to determine in due course. But may I express my gratitude for the very helpful and informative submissions which have been made. The manner and the style in which they have been advanced and the matters that they have covered are a testament to the collaborative approach for which I and others have been advocating.

My Lady, some of the points can’t be responded to today and nor would you expect them to be, not least because some of them are technical, some of them are specific and will require considerable thought and reflection and, therefore, it’s best that I simply don’t venture into some particular territories.

In relation to panellists, my Lady, in relation to that issue, I would strongly suggest that that is a matter for the Prime Minister as the sponsoring minister. It is for her to decide whether to appoint other panel members to sit with you and, therefore, although my learned friend has invited you to contribute to the decision to lend support to the appointment of other panel members, may I invite you to resist that invitation, however attractively advanced it is. It is simply not a matter for debate.

Some submissions have been made about the provisional outline of scope, and the complaint was reiterated that there had been no advance opportunity in advance of the promulgation of that document for Core Participants to make their submissions and to make their positions plain. My Lady, the outline scope document preceded the appointment of Core Participants and, therefore, there was procedurally no means by which fairly persons who may have an interest in due course could have contributed to that process.

But in any event, the Inquiry had to start somewhere and fairness and transparency requires a proper opportunity for comment, which of course has been demonstrated today and exemplified in the written submissions and, therefore, there has been no unfairness done by virtue of an absence of an anterior opportunity to comment.

In relation to some of the points made in relation to scope for Module 1, a submission was advanced to the effect that the outline of scope document failed to make sufficiently plain that Module 1 covered all four nations and of course dealt with and would deal, will deal with reserved and devolved matters.

True it is that there is only one express reference on the face of the outline of scope document to the United Kingdom scope of that module, and of course to the need to examine devolved and reserved matters. But it is absolutely apparent from the detail of the Rule 9 requests which have gone out or will go out to Scotland, Wales and Northern Ireland that the scope of Module 1 indubitably includes all areas arising across the United Kingdom that are relevant to preparedness and resilience, and it simply cannot sensibly be suggested otherwise.

Module 1, it was suggested furthermore, might not be looking at issues of discrimination and disproportionate impact. My Lady, the degree to which Government structures as part of their preparedness considered discrimination and the possibility of disproportionate impact on a variety of sectors and groups is an evidential issue which will be considered.

What cannot be considered, however, of course, is how in a more granular way each part of the Government preparedness structure should have provided for the needs of each of those sectors to which it necessarily had regard. So, putting it another way, we will and must look at the general degree of preparedness or lack thereof and the extent to which the Government did have the variety of groups and persons and people to whom I have referred in mind, but it won’t form part of the Inquiry’s job to try to replicate that process and to try to draw up detailed plans in place of what the Government did. That is not the focus of Module 1.

Planning within the social care sector. Again scrutiny of how the Government prepared necessarily includes an examination of the degree to which they had that sector and others in mind.

Then there are the three procedural pillars: disclosure of the Rule 9 requests, position statements, and the disclosure of lists of undisclosed documents to Core Participants.

My Lady, there is no legal requirement, as I have said. There has in certain instances been a practice of disclosure of each of those documents, but there is by no means an overwhelming case for them and nor has an overwhelming case been established by practice. It will be, my Lady, a matter in your absolute discretion to decide what best promotes fairness and efficiency.

In relation to disclosure of the instructions to experts, I have already said that the Inquiry will disclose those instructions and they will be disclosed at a sensible stage which permits the Core Participants to be able to comment on the width of the expert reports, framed by those instructions, at a time which allows enough opportunity thereafter for the reports to be varied before they reach their final emanation. That is good, sensible practice, I would suggest.

Disclosure. There has been some comment made in relation to the approach adopted by counsel to the Inquiry in paragraph 49 of the written submissions to disclosure. My Lady, may I say straight away that paragraph 49 expresses itself as an aim; it is not the standard. It may be thought that it is dancing on the head of a pin to try to distinguish between what is proportionate and focused and relevant, but I have said this morning, and I repeat, of course the Core Participants will receive material that is relevant and, in our Inquiry and the throwing out of a net wide enough to receive relevant material, we will look for material that is potentially relevant.

I don’t propose to say anything about the Listening Exercise, but turning finally to the question of the retention of documents, the point was made forcibly on behalf of ADHP that the retention-of-documents warning that Mr Connah sent out in January may not have been wide enough to go beyond the demand that is placed upon Central Government.

Can I say that the letter invited and made perfectly plain to Central Government that the warning was to be promulgated to all bodies exercising public functions and, therefore, that necessarily includes local government.

Finally, my Lady, I should say, in the context of the issue of the overwhelming and plain obligation to retain documents, that I believe that Mr Smith will be when preparing the redaction protocol for the benefit of document providers that he will emphasise, re-emphasise of course the message on the overarching obligation to retain and preserve material.

There was a final submission in relation to the need for remote location made by leading counsel on behalf of the Scottish Covid-19 Bereaved Families for Justice and we will give urgent consideration to setting up the Inquiry by way of remote location to allow persons to view and follow these proceedings online.

My Lady, that is all that I propose to say in relation to the submissions which have been advanced on behalf of the Core Participants, unless there’s anything else that you would wish me to address.

Lady Hallett: Thank you very much, Mr Keith.

I thank all the Core Participants, those who made oral submissions and those who have made both oral and written submissions. They’ve all been extremely constructive and helpful and, I repeat, I am very grateful to them and for the offers of support because, to be frank, we’re going to need it. We have a huge task ahead and we will need the support of everybody, particularly the Core Participants, and with that support I hope we can achieve the aims that I set out earlier.

So thank you all very much indeed and thank you to those who have come who didn’t have a speaking role. We do appreciate your interest in everything that’s going on. So thank you all.

(2.28 pm)

(The preliminary hearing concluded)