2. Submissions on Behalf of the Covid Bereaved Families for Justice Group by Mr Weatherby

Mr Weatherby: Good morning.

I previously introduced the Covid Bereaved Families for Justice Group to you at the preliminary hearing for Module 1, but with your permission I will do so again briefly at this Module 2 hearing because obviously there are other people present and watching.

The Covid Bereaved Families for Justice is the group formed in early 2020 as a support and campaigning group for those who lost loved ones to Covid, and the failed response to it. Sadly, as you know, the group grew and grew for very obvious reasons.

The group is UK wide. Its Facebook page has about 6,600 supporters currently. Of those, about 3,320 are signed up as members of the group, which is a significant figure, indicating, more than they want to be updated, they want an actual involvement.

The group is incorporated for administrative reasons. It has a board of directors and a campaign team. Its directors are all bereaved family members.

The members are from England, Scotland, Wales, Northern Ireland and, indeed, beyond, because the criteria is that they lost loved ones within the UK not where they live, and so the members are widely geographically located.

I lead the central legal team instructed by Broudie Jackson Canter Solicitors. We have a full working arrangement with the Northern Ireland team, the Scottish and Welsh bereaved groups who have CP status or are autonomous from the group.

A main object of the campaign from its inception was to get this public inquiry. The families are committed to engaging with the Inquiry to get the answers they seek, to get accountability, and to ensure that all of the UK and each part of it is better prepared for the next time, through your recommendations.

The bereaved understand that they are by no means the only ones with a legitimate interest in the success of this process, but they are central to it, a fact that I have not been slow to underline in my submissions to you so far – or, indeed, with respect, you have not been slow to acknowledge.

The families seek effective participation in the Inquiry. They do not want to be bystanders or passive observers. As you know, we have made significant – I hope significant – submissions to you both in writing and orally, and the group facilitated the consultation at the earliest stages after your appointment.

In respect of Module 2, we’ve made fairly detailed written submissions. Some of the issues overlap with the issues that I raised in Module 1. And where you’ve ruled on them, I certainly don’t intend to tax your patience or repeat those, save for the fact that there is some overlap and I will, with respect, return to one or two of them.

We have read the written submissions of other core participants which came through a few days ago. It’s notable to us on a quick read-through that many of the themes in them are repeated, and therefore no doubt that’s something as we’ve recognised, you will too. And the fact that points are being raised by a number of different core participants will no doubt have an effect on the way that you consider them.

In terms of the agenda, I’ll start, if I may, with scope and paragraph 5 of our written submissions.

We’ve noted that the Inquiry’s provisional scope is certainly wide enough to encompass all relevant issues within this module, and therefore we don’t seek to make constructive criticism of the width of it. We are grateful to Mr Keith this morning for fleshing out some of those issues.

We also note that it’s been said that it’s neither practical nor advisable at this stage to give greater particularity, and the scope will evolve through the Rule 9 procedure. As was said earlier, but just to remind those less familiar, the Rule 9 procedure being the process by which the Inquiry requests material from those it believes can assist the Inquiry.

We certainly understand the logic behind the assertion that that process will lead to material and answers that will allow for more consideration to be made to expand the scope. But if the position on Rule 9 requests remains the same, that they won’t be shared with the core participants, then it does make it difficult for us to have input into the development of that scope.

As I say, I’ve had that argument and therefore I’m going to move swiftly on, but with one caveat, and that is that we say the position in respect of Module 2 is not the same, because of the targeted approach that Mr Keith referred to in writing and earlier on, that being that important government departments, including perhaps the most central of them, the Cabinet Office, will not be required to provide all relevant documents or potentially relevant documents but ones with target.

Therefore, I’ll come on to the process, if I may, in a few moments, but what we say about that is that makes it even more important that we’re involved in the process from an earlier stage. But, as I say, I’ll come back to that, if I may, in a moment.

Before I do, I just want to raise a number of factual points or points that we think should be expressly included within the scope for Module 2, and we say they should be made express within the scope, so there is no doubt but that they will be covered. The enormous task that you have has been noted by Mr Keith and everybody else, and so the possibility of matters being overlooked or missed is obviously going to be there and there throughout. Therefore, the maximum amount of assistance that you can get from core participants we would urge you to do.

More than that, for people who are perhaps within vulnerable groups or people who have suffered discrimination, which I will come on to in a moment, it is very important indeed that they understand expressly that they’re included in the scope. So for those reasons we would ask you, through your team, through either expanding the provisional scope or, perhaps better, through a list of issues, that there should be a rolling or iterative process of expanding the express terms of the scope.

We’ve heard from Mr Keith this morning on the first of the points that I was going to raise, that so-called herd immunity is very much within the consideration of the Inquiry. We’re not surprised to hear that, but we would invite you to make that clear within an amended provisional scope or a list of issues.

Likewise, we would say that it’s important to make clear that the effect of mitigating measures, non-pharmaceutical interventions in particular, to the extent to which they were considered against forecasts of the numbers of people who might die, should be included expressly.

Likewise, the fact that there were certain very high profile sporting events which were allowed to take place during a period of dire Covid statistics. And very sadly some of the people that I represent are here because of those events. And therefore it’s important to them that it’s made clear and express that the Inquiry will be looking at those.

In terms of discrimination and vulnerability, two separate but overlapping areas, I’m grateful to Mr Keith for his clarification and setting out some of the groups, some of the sections of community that will be included in that. But again, as I say, for people within those communities, people with particular vulnerabilities, it’s very important to them to understand as clearly as can be that their issues will be considered, and therefore we would urge you to expand on the generic reference in paragraph 3 of your provisional scope to these issues and to raise them again through a list of issues or an amended provisional scope, to include as many – as much particularisation as possible.

So, for example, the effects of systemic or structural discrimination and the way that Covid had a disproportionate effect on black and brown communities, other ethnic minority communities, and whether that was properly considered by the high level government and Cabinet, particularly but not exclusively in the early stages.

We note and support the submissions on the self-same points made by the Federation of Ethnic Minority Healthcare Organisations and the TUC, which appeared to be supportive of them.

Separately, but in addition, specific concerns were they properly considered? Concerning the elderly, children, clinically vulnerable, those in detention and other congregate facilities, those living with physical and mental disabilities, those living with learning disabilities, autistic people, people with other cognitive disabilities such as dementia, were they fully and properly considered? Again, we note and support the submissions on some of these points made by the disabled people’s organisations, the children’s rights organisations in particular.

And then, of course, there are key workers, those in particularly vulnerable jobs such as transport, healthcare, social care, those in the gig economy and those especially vulnerable because of economic disadvantage.

And importantly, and I think Mr Keith has already covered this point, we very much support the Southall Black Sisters and Solace Women’s Aid regarding whether the particular impact on women and girls of Covid and the response measures were properly considered.

Now, of course, it may well be, particularly given the issues that were raised by Mr Keith, that the Inquiry absolutely intends to pursue those issues, but, for the reasons I’ve already mentioned, we respectfully invite you to particularise them and particularise them at an early stage.

Two further points, quick points on scope. In paragraph 5 we would urge you to add whether the Prime Minister and Cabinet took the virus sufficiently seriously in their messaging. That’s an issue which is particularly raw for some of the families, given some of the media attention particularly in the early months.

And in paragraph 6 we’ve raised the issue of the disproportionate or the allegedly disproportionate enforcement of regulations on certain racial and ethnic minority groups.

And we recognise that may straddle other modules but it is covered to some extent in Module 2, particularly with respect to the drafting of a framework of regulations.

So that’s all I seek to assert in terms of scope.

Moving on to Rule 9, we’ve set out further submissions on Rule 9 from our paragraph 11. You did not find favour with our submissions and those of the TUC on this subject in Module 1, indicating that we’d be provided with general updates on a monthly basis, and Mr Keith has indicated that he is urging you to adopt the same process.

But, as I flagged earlier, we do say that the position is different because of the targeted approach to the production of material to the Inquiry with respect to Module 2. And we do understand the reasons for the Inquiry taking that approach. The example given, unsurprisingly, and helpfully indeed, is that of the Cabinet Office, and we do follow that there will be an extremely large volume of potentially relevant material available.

Now, obviously, as the department of state which supports the Prime Minister and the Cabinet, that material is likely to be central to Module 2 and, indeed, other modules, but – we do understand the points that are being raised, but we also note the obvious caution, that an approach of targeted disclosure does give significant latitude to those who will be subject to investigation and potential criticism to be the ones that actually determine, rather than the Inquiry, in the first place at least, what is disclosed.

I follow and understand and accept that the Inquiry will pursue on a rolling iterative basis with Rule 9s so that, inadvertently or not, disclosure of relevant documents can’t be overlooked or missed. We note that counsel has recounted that the reviews by the Cabinet Office would take over three years, we’re told, and that’s before there’s a privilege and national security check. But in a way this starts to open up the issues with this, because we’re not clear where those estimates come from. They must come from the Cabinet Office itself. And the time taken to consider what needs to be disclosed is a function of many things, including the amount of resources that are put into it.

So we’re not sure the extent of the problem of disclosure, and we would urge you to keep a very open mind of people who may have reason to try to rein in their own disclosure.

If the answer is a targeted approach, and we don’t indicate – we don’t submit that it isn’t, it’s even more vital that there is maximum transparency in this process from the outset as to what is and, perhaps more importantly, what is not being targeted.

So, having commented that the provisional scope is wide enough to cover all relevant matters, the lack of particularity – currently, understandably, the lack of particularity doesn’t assist in the bereaved or anybody else understanding what is being targeted and what is not.

Interestingly, the submissions of NHS England at their paragraph 6 would appear to chime with that submission from the other end of the telescope, from an organisation which is a producer. Of course they’ll speak for themselves, if I’ve got that right or wrong, but it is interesting and important that, in trying to assist the Inquiry, core participants are approaching the same issue from different approaches.

So, in our submission, if a targeted approach is the right one, and it may well be, then it’s even more important that it’s accompanied by a list of issues, iteratively evolving over time as facts emerge, and that there should be disclosure of the Rule 9s so that core participants can see what is actually being sought and what is not being targeted.

So those are our submissions on that.

CTI, Counsel to the Inquiry, refers to the “key narrative events, the decision-making procedures [of those] … bodies and persons [relevant] to the [core] political and administrative decision-making”, and the core decisions themselves, quote unquote.

It’s essential that we all know, in our submission, to what that actually refers, and that’s the greater particularity we seek. At the moment we don’t. And it’s only through that transparency that we are effectively allowed to take a part in this section of the process.

Moving on from that, we note the fact that the Inquiry is seeking corporate or organisational statements “setting out a narrative of relevant events and the lessons learned”, including a chronology. And we note in the written submissions at paragraphs 45 and 50 of counsel’s note that they will “serve a similar purpose to position statements”.

We agree, and we view that as a very positive step indeed, adding only that we hope, in line with the tight timescale set by the Inquiry, that those statements will be required to be provided very swiftly and, indeed, the product disclosed as soon as the redaction process is undertaken. That would be a significant step in facilitating the engagement of core participants. And therefore, we would seek clarification about when those statements are to be produced to the Inquiry and when it’s envisaged that they’ll be disclosed to core participants.

I was going to raise a short point on disclosure, but I think Mr Keith has helpfully answered that point, that it’s the intention of the Inquiry to disclose all material which passes the relevance test that’s gathered by the Inquiry.

Just for the avoidance of doubt, we have not argued, and we don’t argue, for disclosure of non-relevant material. We fully understand and agree that that isn’t required. So I don’t think I need to address you further on that.

Experts. We welcome the assertion that the Inquiry will consider suggestions from core participants, and we will make observations in due course when we have a greater understanding of the wider issues in Module 2. But we would urge the Inquiry to have more of a dialogue with core participants about the areas, the identities and the letters of instruction at an early stage. The current indication is that there is a provisional list of experts, and we would seek that that is shared with us so that we can have input into that.

Certainly from our perspective, and I’ve no doubt others’, we will take a positive approach to that. We have already indicated that we understand the problems in this particular Inquiry of getting independent experts, because just about everybody has expressed a view, but we don’t think that’s insurmountable. We respectfully agree with the indication that I think you gave earlier that you will look to adopt panels of experts so there can be a balance of views where there is such.

But we would urge that these matters are a matter for dialogue, and the current indication that the dialogue or consultation about experts will be at the stage that they are being finalised, we respectfully say is the wrong approach. It’s the wrong end of the stick. The later it is that we and all the other CPs are brought to the table on this, the less positive input that we can have into that. And this is effectively allowing us to assist the Inquiry and facilitating the effective participation of core participants.

Almost finally, the Listening Exercise. This is an issue which, as you know, has generated a number of written and oral submissions already. You considered matters during Module 1. In our written submissions we’ve set out, from 23, a summary of submissions we served on 17 October. Now, we did that in light of the discussion at the Module 1 preliminary hearing, to try to make what we considered to be constructive proposals, and we’ve included them in the written submissions for today, just so that they’re set out so that everybody can see the position of the families on those issues.

As you know, the proposals we made were regarding commemorations or pen portraits, the evidence of circumstance of death and evidence of bereavement, and we stressed the imperative that the Inquiry hears a proportionate amount at first-hand. We’ve noted in the written submissions the reassurance that has been given regarding the second of those issues, the intention of the Inquiry to call evidence from the bereaved on systemic matters relating to the deaths of their loved ones where it’s relevant to the particular module.

You’ve indicated already in your ruling that you’re not minded to hear pen portrait evidence, but that you will keep commemorations under review and something has been said about that today.

I’m not therefore going to address you further on those matters, but we do indicate clearly and publicly that we will positively engage with your team in the dialogue that was mentioned earlier about commemorations. With respect, we won’t change our position, but we will engage positively on that subject.

What I do raise further today is the parts of those further submissions we put in about the Listening Exercise. So beyond the submissions about the importance of the Inquiry hearing first-hand from the bereaved, we have recognised the utility of the wider process to gather experiences and evidence, not just from the bereaved, but from others affected by the pandemic. And we referred to this at 29 and 30 of our written submissions.

But if there is to be such a process, we urge again that it’s devised in collaboration with those affected. You are well aware of the concerns that the bereaved had to reading reports in the media. I’m not going to go back to that. Whether outside assistance is required is plainly a matter for you. We’ve learned today for the first time, in the course of oral submissions, of the two companies that have been engaged to assist the Inquiry in this endeavour.

Whether such outside assistance is engaged, as it appears it has been, we respectfully urge that, through your team, you engage with us to try to put into that process. Your team has many people that have dealt with the bereaved positively and have experience and expertise in that. Frankly so do we. I raised on the last occasion that there were charities, for example Inquest – Inquest has been doing listening exercises for 40 years. It does listening days with the bereaved from many tragedies. So far as we’re aware, it is a key body which we would invite the Inquiry to look to, to engage with.

We’re also aware of other experts, for example some academics that have also, over many processes and reviews and enquiries, been engaged in gathering evidence from the bereaved and have a lot of learning and experience about how to do that, and we would urge that engagement is made with them. We will help. But we would say that it’s important to engage with those who have the experience of the sensitivities involved, and we hope that that will be done.

Finally, just a small point, notice of hearings. We are obviously aware of the difficulties the Inquiry is having because of the extent of its work, but it would be helpful if a little extra warning could be given about hearings, both for the families and also those of us who have other commitments.

Mr Keith has addressed the issue of future modules and the difficulties with providing further information about those at the moment. We would join with both the TUC and, I think, NHS England in their submissions about that. I’ll leave it to them to expand, but we would urge as soon as possible that greater particularity could be given regarding those.

Those are my submissions.

Lady Hallett: Thank you very much indeed, Mr Weatherby. It’s all extremely helpful.

I’m sure I don’t need to assure you, but to assure those whom you represent and the public, my mind is open and the Inquiry team is flexible, and the Inquiry team also knows that I wish to get as much information out there to the core participants and to the public as soon as possible, and I promise you that the team is under direct instructions from me to do that as soon as we can.

So I do understand the concerns when you aren’t told what’s going on, but, as you’ve acknowledged, the team are working enormously hard, but we’ll do everything we can. And I also understand the problem with notice of hearings. I know it’s a really, really tight timetable, and I know some representatives weren’t able to be here today for other commitments. I apologise and I don’t apologise, in one sense. I apologise to them and to you when we cause inconvenience, but the reason is, as you know, that I have set a very ambitious timetable, I hope for good reasons.

So thank you for raising those matters, I’ll bear them all very much in mind.

Mr Weatherby: Thank you.

Lady Hallett: Right. Mr Lavery.

I pronounced it correctly today, I hope, Mr Lavery?

Mr Lavery: Yes.