2. Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Lady Hallett: All right. Ms Mitchell.

Ms Mitchell: Good morning, my Lady.

I appear on behalf of the Scottish Covid Bereaved, as instructed by Aamer Anwar & Co solicitors.

As noted by Senior Counsel to the Inquiry, the impact of Covid on Scotland has been profound, no more so the impact on those who lost loved ones.

The day after the preliminary hearing for the first module, we were advised that four members of the Scottish Covid public inquiry legal team had stepped down, including one of its senior counsel, and the Chair, Lady Poole, was going to step down for personal reasons in three months’ time.

Since that time, a new Chair, Lord Brailsford, has been appointed, which has been welcomed by the families. He plans to meet the families in Scotland soon, and we understand he’s working at a pace to get up to speed.

The Scottish Covid Bereaved are especially anxious, in light of these unfortunate difficulties, to ensure that Module 2A, indeed all modules, are carried out rigorously and in co-operation with the Scottish Inquiry. They wish to ensure that the voices of the Scottish bereaved are heard at both Inquiries.

In particular, for this module, the following seven issues are raised:

One, co-operation between Inquiries. My Lady has already touched upon these matters in her opening remarks, and we are grateful for her statement of intent, and glad to hear that she will soon meet with Lord Brailsford. We are encouraged too to hear that discussions are going on between the Inquiry teams and discussions on operative and practical issues as outlined by Senior Counsel to the Inquiry are ongoing.

The Scottish Covid Bereaved understand that the Inquiries will work together to ensure that, insofar as possible, there is a minimising of duplication of investigation, evidence gathering, and reporting, whilst at the same time ensuring no matters fall between the two Inquiries.

We note that senior counsel this morning has set out in some detail how he hopes this will work.

The Scottish Covid Bereaved understand that both Inquiries recognise the importance of being clear which Inquiry is responsible for looking at which issues. It hopes that if and when any grey areas arise, the Inquiries will work together to ensure which Inquiry is best suited to properly examining the particular issue.

Echoing what has been said by my Lady and also Senior Counsel to the Inquiry, the Scottish Covid Bereaved hope there will be a high degree of co-operation between the UK and the Scottish Inquiry. We understand from my Lady’s comments at an earlier stage that a “protocol of understanding” will be drawn up, or some such terminology. We would ask that that document be made available to those in the public domain to ensure transparency and to foster confidence in that process.

Two, the Listening Exercise Scotland. We have noted that the Scottish Inquiry states it intends to pilot listening project activities later this year with a view to informing the Scottish Inquiry’s investigations and report to the Scottish Government on the lessons that need to be learned to ensure that they are better prepared for any future pandemic.

We are unaware whether this intends to duplicate the work that the UK Inquiry will be doing in relation to the Listening Exercise, and the Scottish Covid Bereaved hope that this can be clarified going forward as soon as possible.

My Lady has already stressed the importance of the listening project to assist and inform her consideration of the evidence led at the Inquiry. The same importance will no doubt be placed on the Scottish Inquiry.

Given the importance of the Listening Exercise to both Inquiries, no doubt families would, if necessary, give their statements twice, but it would be helpful and minimise upset to families if in any way that could be avoided.

Three, timings. We are very grateful to hear from Senior Counsel to the Inquiry this morning that Module 2A hearings will not clash with the oral hearings in the Scottish Inquiry, and this will be of comfort to those listening in Scotland today. We would ask that, going forward, the Inquiries work together to ensure that there is no clash of hearing dates for both Inquiries. As I’m sure this and the other Inquiry appreciate, evidence being led in both Inquiries want to be heard by the Scottish Covid Bereaved.

Four, disclosure. The UK Inquiry is ingathering documents in respect of the Scottish module. There will of course be a significant, if not whole overlap with the documents also sought by the Scottish Inquiry. We note senior counsel’s comments in this regard. We would suggest that a schedule of disclosed documents are shared to ensure that both Inquiries proceed insofar as possible on the same information.

We reiterate the request for the Rule 9 applications be made available. We do not know whether or not the Chair will take or could take different views on different sub-modules. If it is the case that the Chair may do so, then the following submissions are made in the hope to assist my Lady in that regard.

The argument for the Rule 9 applications being disclosed was made repeatedly and in different forms yesterday, and I do not intend to rehearse that. My Lady heard from a number of skilled orators in that regard.

I would like to briefly address the response to those arguments that Senior Counsel to the Inquiry gave yesterday. He stated that the reasons for not giving those documents to core participants were twofold: one, that it would cause too much work for the Inquiry team to be able to cope with; and, following on from that, two, after receiving the Rule 9 applications those representing the interested groups would doubtless have views on whether other or different documentation should also have been asked for, and in turn this might lead to an overall delay in the process.

As stated yesterday, the ingathering of relevant evidence is key to an understanding how central government responded to the pandemic. If this task is not carried out correctly, the foundation on which the Inquiry rests, the cornerstone, is very much weakened. A transparent system of disclosure of course enhances the robustness and legitimacy of the process.

Those who have been given CP status wish to assist the Inquiry with its work. Mr Keith King’s Counsel accepted that the responses to the Rule 9 requests may well beget more Rule 9 applications. That being so, it would seem not just reasonable but sensible to allow the groups who have core participant status to bring a wealth of knowledge to this task and to bring such expertise and interest to a critical part of the Inquiry process. Such involvement at this stage could only enhance the robustness of the disclosure process.

If that takes longer than would otherwise be the case, what would be lost? Time. The Scottish Covid Bereaved absolutely want the Inquiry to proceed with all due haste, but not at the expense of getting the critical process of disclosure correct.

We are grateful for the monthly liaison offered by the Inquiry legal team in relation to disclosure, and will of course be taking up this offer. However, such liaison being uninformed as to the details of Rule 9 application will inevitably be of limited assistance in allowing the expertise of core participants to assist the Inquiry in this regard.

Accordingly, I would ask that my Lady give very careful consideration to allowing core participants sight of the Rule 9 applications, for the very same reason that my learned friend Mr Keith KC sought to suggest would not necessarily be a positive, which is in order that we can have that very input.

Moving on, five, listening rooms. We are grateful to the feedback from the Chair to the Inquiry that it is considering the listening rooms idea for Scotland. We understand that hearing 2A for Scotland will be held in Scotland. As the Inquiry is aware, the geography of Scotland is such that it may not be people to travel to the Inquiry even when it sits there. Accordingly, we would ask that consideration be given to listening rooms even when the Inquiry is sitting in Scotland.

Six, evidence of individual deaths. The Scottish Covid Bereaved wish to assist the Inquiry to understand any possible systematic failings, in respect of providing evidence of individual deaths where appropriate. We would ask that the Inquiry liaise with us about this possibility where and when it arises in order that we can assist the Inquiry by providing information and allow consideration of evidence from those in the Scottish Covid Bereaved group.

Finally, seven, the Inquiry has already heard from the Scottish Covid Bereaved in relation to its views on memorialisation and we gave submissions on that in the opening of the Inquiry in some detail. I would only reiterate that the importance to those in Scotland is that any memorial is capable of being brought to Scotland when the Inquiry sits there to ensure that those who wish can go and see it.

Those are my submissions on behalf of the Scottish Covid Bereaved.

Lady Hallett: Thank you very much indeed, Ms Mitchell, as constructive as ever and as helpful.

As you have obviously noted, I am very conscious of the need to work closely with the Scottish Inquiry. It hasn’t been easy, with the difficulties that the Scottish Inquiry has had, and that is why the parties have not yet seem any memorandum of understanding. We were close to agreeing it and then counsel and the Chair had to step down.

So I hope that when I meet Lord Brailsford – the teams have carried on working, as you have heard, and I hope that we will be able to finalise it very soon, and obviously then you will get a copy.

And the other points I will very much bear in mind. So thank you very much indeed.

Ms Mitchell: I am obliged.

Lady Hallett: Now I think we’re going to a remote presentation. Mr McConnell for NHS NSS.