Transcript of Module 2C Preliminary Hearing on 2 November 2022

(10.00 am)

Lady Hallett: Good morning, everyone, welcome to the first preliminary hearing into Module 2C that will be focusing on the core decision-making in Northern Ireland.

I will leave it to Ms Clair Dobbin King’s Counsel to set out in a moment the background to this module, and how it will work.

Could I just say this, before I hand over to her: I want to emphasise, firstly, that this is a separate module from Module 2, 2A and 2B, and it will be considered separately with a dedicated team for it.

Secondly, I know that there have been some in Northern Ireland who have campaigned and asked for a separate Inquiry dealing only with Northern Irish issues. Obviously that’s not a decision for me and I am entirely neutral. But I will say this: if another Inquiry is established, I will work closely with it, as we are trying to do with the Scottish Inquiry, to try to ensure that no issues are missed and that we all minimise any duplication of effort.

If no other Inquiry is established for Northern Ireland, my team and I will do everything in our powers to ensure that the most significant and important issues that the people of Northern Ireland wish to see investigated will be investigated fully and fairly.

The aim, as I’m sure you all know, is for us to investigate, gather evidence, analyse and then to produce recommendations, if there are lessons to be learned, that may, if there is another pandemic in the future, save lives and reduce hardship.

So that’s our aim, and that is why I have set an ambitious timetable, because we have to get on with this Inquiry if we’re going to make a difference, and to get on with this Inquiry we’re going to need the fullest co-operation from core participants, and of course those to whom we make requests to provide documents.

So thank you all for your interest this morning, and I’ll now ask Ms Dobbin to set out more of the background. Thank you.

1. Statement by Lead Counsel to the Inquiry for Module 2C

Ms Dobbin: Thank you.

My Lady, on behalf of the counsel team, I first wanted to welcome those colleagues from Northern Ireland who appear on behalf of the core participants in Module 2C and who join us. We extend that welcome to core participants too, and we do so warmly.

This is, of course, our first hearing. It is but one of many steps that we will take which will culminate in the hearings in Module 2C, and we are really looking forward to working with all of the core participants and their representatives towards our common purpose, as Module 2C develops, and with your leave, I’ll say something about that common purpose in the course of this opening.

But it might assist if I start with some of the practical arrangements for today’s hearing.

So, first of all, it’s being recorded and livestreamed to other locations. And for our purposes, of course, the benefit of that is that people in Northern Ireland can participate in the hearing. And of course it also means that those people who might not be able to get to a hearing because they have to stay at home or they can’t travel, it means that it’s accessible to them as well, and it also means that a greater number of people will be able to attend Inquiry hearings than could be accommodated in the Inquiry hearing room as well.

But of course this is a public hearing, it’s open to all people. Under section 18 of the Inquiries Act you’re 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, and by having livestreaming the Inquiry is able to go a very considerable distance to meet that obligation.

The broadcast has a three-minute delay. That’s important in an Inquiry when sensitive things might be touched upon. It means that if anything inadvertent is said, and we all know that that sometimes happens, it means that the live feed can be paused and it can be put right before it’s broadcast. So it gives everyone a degree of comfort in that regard.

We don’t expect anything like that to happen today, but if it does people will understand why the broadcast can be paused.

In terms of representation, you have core participants who are present today and represented in the hearing room. The Northern Ireland Bereaved Families for Justice are represented by Mr Lavery and Mr McGarrity. The Commissioner for Older People for Northern Ireland (COPNI) Ms Anyadike-Danes. And the Trades Union Congress is represented by Mr Jacobs. The National Police Chiefs’ Council is represented by Ms Neil.

But there are a number of core participants or their representatives who appear by way of remote attendance as well. Before you, you have the Executive Office of Northern Ireland, represented by Mr Sharpe and Ms Fee; Dame Arlene Foster, former First Minister, represented by Ms Ellison; Ms Michelle O’Neill, former deputy First Minister, represented by Ms Quinlivan and Mr Bassett. And Mr Givan, the former First Minister, represented also by Ms Ellison.

The Northern Ireland Department of Health is represented by Ms Fee. I should say that’s a different Ms Fee, Ms Fiona Fee, and the Northern Ireland Department of Finance is represented by Mr Hanna. And they may not be physically present in this room but they are of course just as much of today’s hearing as well.

Turning then to the core participants in Module 2, my Lady, you appointed these persons, organisations, parts of the government in Northern Ireland, as core participants in Module 2C because of their very particular interest in the matters which will be investigated, and you did so under Rule 5 of The Inquiry Rules 2006.

By so doing, you accorded them enhanced rights in this process. Those rights include that they’re entitled to address you in hearings like that one, they’re entitled to disclosure of evidence, they’re entitled to suggest or raise with the Inquiry possible lines of investigation or work, and they will in due course be able to inform the sorts of questions that are asked of witnesses.

But, and it’s really important to say this at the outset, individual people don’t have to be core participants or members of core participant organisations in order to play an important part of the work of this Inquiry.

They can do that by being part of the Inquiry’s Listening Exercise.

One aspect of that exercise is that it permits individuals who want to to give their account of how the pandemic impacted on them. But it would be wrong to think that its only purpose is to enable people to convey their experiences and to have them recorded, important though that ability to speak and to be heard will be for many people. But with your leave again, I’ll come back to that a little later in the opening and provide some more of the detail around that Listening Exercise.

But that ability on the part of the Inquiry to hear the voices of the many of those who suffered through the pandemic brings me to some overarching observations about the nature and the scale of the task before all of us.

When the Covid pandemic reached Northern Ireland, it brought suffering and pain, isolation and fear, to all of its people, regardless of their political or religious beliefs. It upended the lives of children, regardless of where they went to school. It fractured family life. It separated friends, regardless of where they lived. It took away the gatherings, the being together, important to people in Northern Ireland. It caused financial hardship and strain across communities, and it was indiscriminate in taking the lives of loved ones.

It’s the duty of this UK Inquiry in Module 2C, on behalf of the people in Northern Ireland, to understand how the government in Northern Ireland responded to the unfolding pandemic and to get to the truth about how decisions were made: what factors were taken into account in making the key decisions, the scientific and medical evidence upon which those decisions were based, how those who govern in Northern Ireland came together to make decisions for all of the community, whether there were impediments to decision-making. These are but some of the issues that will be examined.

The Inquiry team is acutely conscious of the unique and sensitive position that Northern Ireland occupies. Its constitutional settlement, through the Good Friday Agreement, means that the way its government functions has to be seen through a different lens to that of the other devolved nations. But the Inquiry will be no less searching for that, because that is the fundamental duty which this Inquiry has undertaken to discharge to the bereaved and to those who have suffered, in so many different ways, across the UK.

I mentioned at the outset the common purpose of the Inquiry and those who participate in it. My Lady, it is surely this: it’s to get to an accurate account of what happened so that it can be subject to scrutiny in all of the ways that you have touched upon in other hearings in this Inquiry.

But it is also to serve future generations by identifying anything which went wrong or, conversely, judgements well made. But to identify what could have been done better, to examine what the consequences were of decisions made or not made, to ascertain whether there were barriers to the achievement of the best outcomes. In short, the Inquiry’s mission overall is to ascertain what can be done now so that the scale of death and suffering seen does not happen again.

My Lady, you have made it known and you have stressed that you want this Inquiry to foster an inclusive approach, and that those who are vulnerable or disadvantaged or who were disproportionately affected by the pandemic are to the fore.

We hope that all core participants will join with us in this common cause. We encourage organisations, government, ministers, politicians, to participate in this Inquiry in this same spirit, not to defend positions at all costs but on the understanding that they have a vitally important role to play too in safeguarding future generations.

My Lady, that’s by way of introduction. I wanted to turn to the written submissions which core participants have made.

You received submissions from the Northern Ireland Bereaved Families for Justice, you received them from the TUC and for the Commissioner for Older People too. And we are really grateful to them, because it enables us as a counsel team to understand the issues that are most pressing to those core participants, and I mean no discourtesy by summarising what they have said briefly, because they’re going to develop what they have said before you in any event, but I wanted to flag a few issues that would have been addressed in this opening in any event.

The Northern Ireland Bereaved Families for Justice press the point that they think it’s very important that the Inquiry considers the response in Northern Ireland, having regard to the fact that Northern Ireland is in a single land mass with the Republic of Ireland, and they raise issues about whether there were possibly any failures by not treating the Republic of Ireland and the north of Ireland as a single epidemiological unit. And the families also point in this regard to the existence of a memorandum of understanding about public health agreed by the respective Departments of Health, and I think I can deal with some of those points in the course of this opening too.

They press the point about the importance of care homes in relation to the pandemic, and they also raise the point about whether or not there would be merit in Module 2C having a panel that sits with you, because of the particular features of Northern Ireland, having regard to its constitutional settlement and its relationship with the Republic of Ireland.

On behalf of the TUC, the concern is raised that the provisional terms of reference did not reflect that there was no functioning executive from 2017 to 2020. My Lady, that may have been somewhat lost in the detail of paragraph 3 of the outline of scope, but in fact the absence of ministers is one of the issues that is set out therein, and I’ll come back to that.

The TUC also seeks further information about the scope of future modules so that core participants can understand the delineation between those and the extent of any overlap with Module 2C.

The Commissioner for Older People has very helpfully set out in his written submissions the nature of his role and his willingness to assist the Inquiry, particularly as it relates to his constituency, and he raises of course the issue of those older people who died alone at home or in hospital or those older people who have been left with enduring illness as a result of the pandemic, or whose health outcomes have been adversely affected because of it.

My Lady, as I’ll come to, you appointed the Commissioner as a core participant because of his ability to represent a cross-section of older people in Northern Ireland. As has been set out in relation to Module 2, and I will come to as well, the focus here is on the decision-making process as opposed to how decisions ultimately impacted upon affected people.

But the Commissioner, has a real part to play in Module 2C insofar as he has a real interest in and contribution to make on the important point about whether and to what extent the decisions taken took into account assessment of the possible impact of decision-making on groups of particularly vulnerable people, and we in the Inquiry team very much welcome the approach that he has taken in his submissions.

Turning then, if I may, so the background to this module.

Between January 2017 and January 2020 the power sharing arrangements in Northern Ireland were suspended. On Saturday, 11 January 2020, the Assembly sat for the first time in three years. Dame Arlene Foster and Ms Michelle O’Neill were appointed to the offices of First Minister and deputy First Minister respectively. On that Saturday they spoke of the need to bring people together and of hope for the future.

As we all now know, at one and the same time, the Covid storm clouds were gathering on the horizon. The first confirmed case in Northern Ireland was reported on 28 February 2020. Cases continued to rise in early March. The first death, that of an older man, was recorded on 19 March 2020.

On Monday 23 March 2020, the then Prime Minister announced severe restrictions, the first national lockdown. This decision was made on a UK-wide basis, with the Prime Minister announcing the lockdown and the leaders of the devolved administrations making their announcements soon afterwards.

The population of Northern Ireland is approximately 1.9 million people. Recent figures calculate that in Northern Ireland the total number of Covid-19-related deaths registered from the start of the pandemic to around 21 October 2022 is 4,900. And those statistics are taken from the Northern Ireland Statistics and Research Agency, published just a few days ago.

Since the beginning of the pandemic to 21 October of this year, the 75 and over age group accounted for almost two-thirds of all deaths and almost three-quarters of Covid-19-related deaths, of course reinforcing the point that the Commissioner makes so strongly about the extent to which it’s the elderly who are disproportionately represented in terms of those who died.

The rates of infection in Northern Ireland and of deaths varied over time and as against other parts of the United Kingdom. For example, in August 2021 a British Medical Journal [article] raised the question of why Northern Ireland had at that point such a high death rate from Covid-19. It’s current seven-day death rate per hundred thousand people at that time was more than twice as high as the wider UK and ten times as high as in the Republic of Ireland.

Now, of course, that is just a snapshot, but it does just show that issue about variability, and comparatively so as well. But, my Lady, each death, each case of serious illness will have devastated those affected. And for those who lost a loved one, as we all now know, that loss will be or will have been compounded by the absence of family and friends, the comfort that all of us expect to have in those times of bereavement.

The impact of the pandemic was surely felt by almost every person in Northern Ireland, but some more than others. It’s well understood that the pandemic placed health and social care services and systems under the most enormous pressure. Frontline staff of those services and those offering other vital services like transport or supermarket work exposed themselves to daily risk. Swathes of the economy were affected and impacted. Individuals lost employment, their business or job security.

But for many other people, my Lady, the cost was a hidden one. It meant living in housing that was poor, or unsuitable, or overcrowded. For some, there was no escape from violence or abuse at home. There was no or little respite for those families who cared for other family members within their home, or for those families with children with particular needs.

For other people, there was a cost to their mental health. For other people, illnesses have gone undiagnosed or untreated, and those delays cannot now be undone, or could not be undone.

There are other issues as to the impact on those with existing health conditions or those children whose education was interrupted for such a long time and whether that will impact on their potential into adulthood. And a further related issue which is pressing in Northern Ireland is the impact that the pandemic had on its fragile health system.

But coming back to Module 2C, my Lady, what this human cost points to is the need for rigorous investigation of the decision-making process at the outset. In Module 2C that investigative gaze is necessarily on how the most senior levels of government reacted to the pandemic and the decisions which they made, but particularly in respect of non-pharmaceutical interventions.

I’m sure that those interventions are imprinted on all of us, but of course they included those things like the lockdowns, the local restrictions, the working from home, the social distancing.

What will be investigated in Module 2C are those matters that fall within the Inquiry’s terms of reference and the provisional outline of scope document for Module 2C.

There may be those people in Northern Ireland who are unaware that there was a consultation process that informed both of these. As has been set out in the Module 1 hearing, after you were appointed and draft terms of reference had been formulated, you wrote an open letter to the public in which you announced that there would be a public consultation process on the draft terms of reference. And that was specifically so that you could take into account those issues which were pressing and of concern to the public.

You consulted widely across all four nations, and in March 2022 you visited Northern Ireland and you spoke to bereaved families there. And again, that was so that you could understand the issues in Northern Ireland which were most pressing and important to them.

In all, that process generated over 20,000 responses across the United Kingdom. A comprehensive independent report was produced which encapsulated the views expressed and the key themes that were produced as well. That, in turn, led you to revise the terms of reference in important ways, and those revisions were accepted by the then Prime Minister.

The Inquiry was formally opened on 21 July 2022, and it was at that point that you announced that it would proceed on a modular basis which would be announced and opened in sequence.

Module 2C is, as you say, quite separate to Module 2, but it is also integral to it as well. The provisional outline of scope for Module 2 was published on 31 August of this year, and it’s going to examine the core political and administrative governance and decision-making in the United Kingdom concerning high level response to the pandemic from January 2020, and it’s going to pay particular scrutiny to the decisions that were taken by the Prime Minister and the Cabinet, as advised by the civil service, senior political, scientific and medical advisers and Cabinet subcommittees.

So Module 2C is the analogue to that in Northern Ireland, and, as I’ve already said, it will focus on the decision-making by the government, including the First Minister, the deputy First Minister, and other ministers during this period.

To that end, Module 2C was also opened on 31 August, alongside the counterpart modules in Wales and Scotland as well, and its provisional scope was published on the same day.

So, like all of those parts of the Inquiry which fall under the umbrella of Module 2, it will be intensely focused on the decision-making by the government in response to the pandemic, so between the early stages of the pandemic in January 2020 until the Covid restrictions were lifted in March 2022.

Its outline of scope is necessarily provisional, because Module 2C must, like its counterparts, be agile and capable of responding as the issues are revealed in terms of disclosure and evidence.

It’s inevitable that this will include consideration of the consequences of not having power sharing arrangements right up until the emergence of Covid and the response that that absence had on the response to the pandemic.

It seems to us, my Lady, that there are a series of really practical questions that that gives rise to. But standing back from that, the main question appears to be what impact it had on those who picked up the reins of power in January 2020 and who were not just beginning to run government again in Northern Ireland and all that that entails, but who were thrust headlong into dealing with a rapidly unfolding pandemic.

What was the legacy of the absence of power sharing arrangements on the institutions of government, on civil servants, on the health service? How did that shape the response by the government to the pandemic?

That means, naturally, that there’s going to be a focus on those politicians who held the highest offices in this module: the First Minister and the deputy First Minister. We do understand their relationship with the Executive Committee and the role of the Executive Committee in decision-making in Northern Ireland.

But the First Minister and the deputy First Minister do have a distinct position in the constitutional arrangements in Northern Ireland, and it was for that reason that you appointed them core participants in their own right. And between them they should be able to speak to the decisions that were made in the Executive in terms of those key decisions that will be subject to scrutiny.

But again, my Lady, standing back and pulling the lens out, as it were, I anticipate that what you may also want to scrutinise, given the unique power sharing arrangements in Northern Ireland, is whether and to what extent politicians pulled together for the good of all people and to what effect.

Like all of the devolved nations, Module 2C will also seek to understand the relationship between the government in Northern Ireland and the United Kingdom Government as well in that decision-making process, whether and how that relationship impacted upon the decisions which the government in Northern Ireland made. And that will include examination of the information, the advice, the expertise provided by the UK Government and other relevant international and national bodies as well. But I suppose, in summary: what was the nature of the relationship, the dialogue, the communication, between the United Kingdom Government and the devolved nations? And did that relationship work in Northern Ireland so as to produce the best outcomes for people?

Northern Ireland is quite distinct from Scotland and Wales in terms of its history, its geography, its constitutional arrangements. It shares a border, of course, with the Republic of Ireland and that adds a different dimension again, as compared to the other devolved nations. As set out in the provisional scope document, the Inquiry will also consider the extent to which decisions were informed by the response of the government in the Republic of Ireland as well.

But I thought it would help at least if I said or indicated that we are aware of the matters that the bereaved families have raised as well about the issue of Northern Ireland being an epidemiological unit with the Republic of Ireland, and we’re aware of the memorandum of understanding as well, and we have sought to ask relevant bodies about that in the Rule 9s as well.

A good example of that, for example, is the public health authority in Northern Ireland. We have asked that body a series of questions about their interactions with counterparts in the Republic of Ireland or about co-operation in the Republic of Ireland. So we are aware of that.

Just turning to the really significant decisions that the investigation will focus on, Module 2C will consider the timeliness of the interventions, whether there were viable alternatives, whether different decisions might have produced different outcomes.

We hope to investigate what the driving forces of the decision-making were. Put another way, were there overarching principles which informed how government approached the decisions it had to make or which guided decision-making? Did politicians have consistent objectives that they sought to meet when they were making decisions? Did they have ethical frameworks within which they ought to make those decisions as well? Those are all the sorts of things we hope will be encompassed in the investigation.

Also, to what extent was it possible to reliably foresee or measure the consequences of the decisions that were taken? Not just in terms of the spread of the pandemic as well but all of the other ways that they affected society as well. Were there steps that could have been taken to mitigate those other potential consequences?

Of course, implicit in all of those questions is understanding the extent to which there was assessment of the impact that the decisions would have on existing inequalities.

Being clinically vulnerable is one potential area of inequality, and perhaps it’s the one that comes most to mind when we consider Covid, but we know that there are many other people who have been disproportionately affected, and we’ve touched on some of those already: the people on frontline services, the disabled, the elderly, children, those with chronic health needs, and members of ethnic minority communities. In common with the other Modules 2 and 2A and 2B, we will also seek to ascertain the extent to which the different groups of people who stood to suffer particular disadvantage because of the pandemic were identified as part of the decision-making process, and the degree to which this was factored into that important decision-making.

And of course, as I’ve already said, that’s the very reason why you have appointed representative bodies as core participants in Module 2C, but we will also be seeking witness statements and evidence from other statutory bodies who have important roles in relation to people with protected characteristics, and I will return to that.

My Lady, the four nations were not in lock-step with each other in terms of the measures which they took to tackle the pandemic, and that’s not to suggest that they should have been, but there are issues about why there was divergence, whether the taking of divergent approaches mattered, and again, whether or not that impacted on the overall effectiveness of the response to the pandemic.

It’s also clear that the pandemic put those experts – and by this we broadly mean those with scientific, statistical and medical expertise – under great pressure to produce data and advice at pace and to make that comprehensible to civil servants, advisers and politicians who would go on to use it to inform their decision-making. And again in Module 2C we wish to investigate that further and understand the extent to which those charged with the high-level decision-making were able to assimilate and understand the science of responding to the pandemic as well.

Module 2C will also consider the wider issues around health messaging. Were there issues particular to Northern Ireland that the health communications needed to tackle? Were the communications as effective as they could have been? Were there any factors which impacted upon public confidence in the steps the government was asking the public to take in response to the pandemic?

My Lady, these are some of the provisional matters which Module 2C anticipates will be investigated and that we have begun the process of sending Rule 9 letters out in respect of.

My Lady, in terms of the future course of the Inquiry, one of the issues which has been raised is how the Inquiry will develop and what part Northern Ireland will play as the Inquiry does develop. In Module 2, because the focus is on those crucial, very high-level decisions, it was clear that the devolved nations need to have these sub-modules, but the ambit of later modules and how the interests of the devolved nations will be represented in those as the Inquiry progresses is a matter which is under consideration.

You indicated in July 2022 that one further module would be Module 3, and that that would examine the impact of Covid on healthcare systems generally and on patients, hospital and other healthcare workers and staff. More detail was set out about that on Monday in the hearing in Module 2. I wasn’t going to repeat everything that was said about that on Monday, but I think it’s important to say that Module 3 will include consideration of the impact of the pandemic on healthcare systems in England, Wales, Scotland and Northern Ireland, and that this will include issues such as the capacity of healthcare systems to respond to the pandemic and how they evolved, healthcare-related inequalities, core decision-making within the healthcare systems. And other matters that you have directed will be inquired into include staffing levels, critical care capacity, palliative care, the issue about Do Not Attempt Cardiopulmonary Resuscitation instructions, those really important issues that arise in connection to healthcare. I thought it was important to say something about that and to indicate the level of detail with which those issues will be considered.

As regards later modules, you have indicated broadly that they will cover both system issues and impact issues across the United Kingdom, and that this will include issues like: vaccines, therapeutics and antiviral treatment across the UK; the care sector; government procurement and PPE; testing and tracing; government business and financial responses across the UK, and impact on business sectors; health inequalities and the impact of Covid-19; education and children and young people; the impact on public services and public sectors; and issues like hospitality, retail, sport and culture.

My Lady, it may be that different modules take different approaches dependent on their subject matters, because there is an inherent flexibility to the modular system. But the Inquiry would wish to make clear that those issues significant to Northern Ireland will be considered with rigour as the Inquiry develops.

May I say a brief word about the Rule 9 requests that we have made.

The Inquiry started its work on 21 July and, like all public inquiries, a very good deal went on to get the Inquiry set up and instituted, and that included getting Module 2C started.

The work has included the sending of the initial really important Rule 9 letters to organisations who are significant because the disclosure that we seek from them will be fundamental to our work, and it’s likely that the disclosure we get from them will inform the further Rule 9 disclosure requests that we make.

Those initial requests have been sent to the Northern Ireland Executive, the Department for Health, the Northern Ireland Office and the Public Health Agency.

That process of issuing Rule 9 letters is ongoing and iterative. It’s expected that within the next few weeks those requests will also be sent out to the government departments in Northern Ireland, the Office of Northern Ireland’s Chief Medical Officer, statutory bodies responsible for safeguarding and promoting the rights and interests of vulnerable people as well.

I just wanted to say, though, that the Rule 9 letter to the Executive Office is of obvious import. It’s a critical one. Aside that it seeks a corporate statement about the processes by which decisions were made by the government in Northern Ireland, it also seeks extensive disclosure. And the type of disclosure sought, and I emphasise this is just to indicate some of the things that have been sought, is extensive.

So what we’ve asked for are things like the key policy and guidance documents, position papers, policy advice, any framework agreements which were entered into that relate to the issues that have been asked about, a chronological list of key meetings, so meetings at which significant decisions were made or discussed. For those sorts of meetings, the agendas, submissions to ministers, briefing notes, pre-reading, actions, action trackers.

That’s just, again, a snapshot but it’s important to, I think, make clear the detailed sort of material that we are seeking from the Executive Office. Because what we ultimately want to get is the record of how the key decisions were made and what underpinned the decisions. So we expect to receive a record of the discussions which led to the decisions and, as I’ve said, the underlying material. And we hope that once we have that that will obviously – and the disclosure from the other key organisations – that will be the spine of our disclosure and provide us with that ability then to go to other people, other organisations, on the basis of what we know to ask for that more detailed disclosure or that ability to ask very specific things of people that we know that they must know about.

A team of solicitors, barristers and paralegals is ready and waiting to review the material that we receive for relevance.

An issue that has been raised over the course of the past couple of days, and indeed in relation to Module 1, and you gave a ruling about it, is the disclosure of Rule 9 requests. The submission which has been made to you by the Inquiry teams is that the disclosure of Rule 9 requests is not required by the Rules, nor established by past practice, and that given that almost all of the Rule 9 requests will be superseded by and built upon further iterative requests from the Inquiry, disclosure of the Rule 9 requests would of itself not serve any particular purpose, because they would be bound to be built upon in any event. And of course core participants will get to see the relevant material which that generates as well.

But what you indicated in the ruling in Module 1, and it was referred to in the hearing in Module 2, is that the Inquiry is also undertaking to provide an update as well, I think it’s a monthly update, as to disclosure and where it has reached in each of the sub-modules as well.

Turning then to disclosure to core participants.

My Lady, public inquiries, like other investigative bodies, are a bit like funnels. That’s the analogy that’s often drawn. By their Rule 9 requests they seek a variety of material which is likely to be relevant or may be relevant, and upon inspection it may not be or it may lead the Inquiry down a different investigative route to a more relevant document or piece of evidence.

The point is that by a process of assessment for relevance, the Inquiry is able to refine that which it ultimately provides to core participants.

In an Inquiry like this, there is an obvious need for balance. The number of potentially relevant documents held by core participants or organisations across the UK is vast. Reference was made on Monday to that maximum public law that too much disclosure can be as damaging as too little, and I was reminded of something that Lord Justice Singh, who has given lots of important judgments on disclosure, said in the well known case of Hoareau, he warned against parties off-loading – those are his words, not mine – a “huge amount” of disclosure on another party and asking them “to find the ‘needle in the haystack’”. And what he emphasised was the importance of parties assisting the court in order to get to the key issues.

Lord Justice Singh’s concern can apply equally to public inquiries. Too much disclosure can be derailing. It can obscure that which is really important. And as contemplated by Lord Justice Singh, critical documents are much harder to find in a morass of marginally relevant or irrelevant documents.

So in Module 2C we will strive to get that balance right by our iterative process, not by making requests of core participants which amount in reality to just asking them for everything or almost everything or which excuse them from exercising critical judgement or assessment as to what’s been asked for.

We’ve started by asking for the materials relevant to the making of key decisions but we will fan out from there and we will make further iterative requests from disclosure, and that will build upon what has already been received and it will go to the issues that the Inquiry considers of particular relevance.

But it’s really important to say that those persons and organisations who have been asked for disclosure can really play a part in that, and we have reiterated the point to them that we do expect them to engage in the process in the spirit of co-operation.

We have indicated that organisations should be candid where questions have been asked of them intended to elicit information about difficulties which they encountered or where systems didn’t work as effectively as they might have done in response to the pandemic. And material providers have been asked and will be asked to bear that in mind in terms of their approach to requests for information and disclosure, and to work with us to ensure that the Inquiry has access to all materials of relevance and not just those that we have asked for.

We’re really grateful for the positive engagement and the willingness to assist that has thus far been pledged, but we do, on behalf of the Inquiry, need to make it quite clear that the Inquiry will be robust in its approach to disclosure requests and it does expect full co-operation from all those who hold relevant material.

My Lady, you also ultimately have the power to compel disclosure as well under section 21 of the Inquiries Act. We haven’t asked you to exercise that power yet, but we won’t hesitate to do so if we think that there is any holder of relevant materials who needs to be compelled.

So these are some of the steps that will be taken in relation to disclosure: first, as has been indicated by the Inquiry, disclosure updates will be provided so as to report on progress which has been made in obtaining relevant documents. Every core participant will receive the same documents in their module.

We will provide all documents that the Inquiry has received, subject to three things: first, a relevance review so that only relevant documents are provided; a de-duplication exercise; and then redactions, but in accordance with the redactions protocol. For example, that most obviously applies where, for example, there’s personal information about people or by the making of any restriction order by you, my Lady.

Disclosure will take place in substantial tranches, it’s not going to be piecemeal, and the system that will be used for its management is Relativity.

My Lady, I said that I would return to the Listening Exercise. I hope that’s a convenient point to do so.

It’s the process by which the experiences of bereaved families and others who have suffered because of the pandemic can be provided to the Inquiry and listened to or read, then analysed and summarised and provided to the Inquiry teams and to core participants for use in public hearings.

As has already been stated in respect of Module 2, this isn’t analysis or summary of statistics or data, but rather of experience. By this means, the Inquiry will be able to hear the voices of the people of the UK and to reflect upon their experiences, but also to incorporate – and this is important – those accounts into its work. So the summaries of the accounts given by people and the accompanying analysis of those accounts will be fed into the public hearings as written evidence.

The Listening Exercise gives opportunity to contribute to the work of the Inquiry but in a way that requires no formality nor any need to attend a hearing, and it’s open to all of those people whose lives have been affected across the spectrum of human experience. And of course no one person’s experience or loss will be the same as another’s, and the Listening Exercise enables this Inquiry to capture that full breadth of human experience across the United Kingdom, but including from those people who would never otherwise come forward or whose voices would never be heard in the setting of a formal public inquiry. It allows people to come forward and say what happened to them in circumstances where they otherwise might not. And we really hope that people in Northern Ireland will contribute to the work of the Listening Exercise.

So it will support the Inquiry’s legal process, but – people need not be worried – it’s not a legal process in and of itself, and the experiences which people share will not be filed in the hearings by way of direct evidence or as individual testimony. Their accounts will be anonymised.

The plans for the Listening Exercise have been set out in a note from the Solicitor to the Inquiry which is available on the Inquiry website, but, as was set out in the hearing in Module 2, piloting of different approaches to the Listening Exercise is going to start shortly. Obviously the piloting is important because the architecture of the Listening Exercise has to be just right.

In November there’s going to be a pilot of an online platform whereby people will be invited to share their experiences via the Listening Exercise website. And then later, in the winter and into the spring, a pilot in-person and online process will start with group sessions, and over time those trials will increase in scales until the Listening Exercise is running at full capacity next year.

My Lady, may I touch upon the issue of expert witnesses.

The Inquiry has provisionally identified a number of specialist areas in relation to which lay and expert witnesses may give evidence in Module 2, and in broad terms the specialist areas that Module 2 has identified may include the following: public policy and governance, systems for measuring and the estimation of infections and deaths and the registration of deaths, statistical methods in infectious disease epidemiology and the modelling, government and public communications, and behavioural science. That’s just a summary.

We on behalf of Module 2C will consider whether issues relevant to Northern Ireland could be captured by the same experts, but will also consider any areas of specialism that it might have specific Northern Irish expertise on for Module 2C. And I think as has already been said, in the event that experts are instructed, for example, letters of instruction setting out the parameters of their work and the questions that they will be asked will be prepared. The questions that experts are asked to address will be made available to core participants in advance of any report being finalised, and core participants will be provided with an opportunity to provide observations on them.

My Lady, again with your leave, I just wanted to end this opening on the issue of commemoration.

Because the scale of the loss which this Inquiry will consider is unprecedented, so too must it find different ways to acknowledge those who died. One of the purposes of commemoration is to remind core participants and the Inquiry of the people who are at the centre of its work, to bring them to mind, to remind everyone that behind all of the legal processes, the issues, the forensic points, there are people who were loved and who are missed, and who sight must not be lost of.

In this Inquiry, the scale of loss is so great and the experience of loss through Covid so wide, so proximate to all, that on behalf of the Inquiry team we wanted to reiterate that this loss of sight will not happen. Consideration of those who died, of the loss suffered by those who continue to live, will naturally permeate all aspects of the Inquiry’s work, and of Module 2C’s work.

The Inquiry is considering other ways to remember and to reflect upon those people who died. My Lady, I know that consideration is being given to perhaps a physical installation at a hearing centre which could be a static or mobile artwork or something more organic that grows over time, such as a book of commemoration or a video wall, and that you’re also looking at how the Inquiry website can be used for commemoration.

But I know, and that you will want this to be emphasised, that you want the Inquiry to work with those representatives of those most affected to develop a fitting commemoration and that the Inquiry will notify effective groups of its developing thinking and involve them as appropriate in the coming weeks.

My Lady, just then in terms of future hearings.

It’s anticipated that there will be a further preliminary hearing for Module 2C in the early part of 2023. The Module 2 hearing will take place in and around summer 2023, but the public hearing in Module 2C will take place in Northern Ireland in early 2024, and I think the provisional marking for it is about three weeks, and this will be kept under review. So I think it’s important to say that there’s a slightly different timetable then for Module 2C.

My Lady, those are the opening submissions on behalf of Module 2C. Is there anything that I can assist you with?

Lady Hallett: Not at this stage, thank you very much indeed, Ms Dobbin, it’s been extremely helpful.

We shall take a break now and I will return at 11.15. Thank you.

(11.00 am)

(A short break)

(11.15 am)