2. Submissions by Mr Weatherby, KC

Mr Weatherby: You will have seen from our written submissions that we’ve raised a number of issues, some of them have familiar themes. I want to underline at the outset, if I may, that the families campaigned very hard for this Inquiry to be established. They are unified by the imperative that everything must be done to make it as effective as possible and, so far as is possible, they want to play their full part.

In terms of the written submissions, as has been noted, they are joint submissions with the Northern Ireland team, with whom we’re working very closely. The UK group and the Northern Ireland group, we anticipate the other family groups, the TUC and no doubt others have been very concerned at the lack of clarity as to how the Inquiry intends to deal with the devolved issues in Module 1 or, indeed, how it could possibly fit within the timetable as had been indicated.

Unlike Module 2, of course, there’s no dedicated sub-modules and, in our submission, respectfully, the timetable appeared to be inadequate to deal with the UK matters, never mind the devolved ones as well.

Just to indicate, as far as we look at it in high level, those issues include how the UK Government and institutions considered preparedness with respect to the three devolved nations and jurisdictions and worked with the devolved administrations and institutions to that effect, but also how the devolved administrations themselves addressed their own preparedness duties.

Now, of course, Mr Keith has given some helpful additional information about those matters. For my part, it would be very helpful if we could have a list of issues which expressly sets out the extent to which and how the Inquiry is going to look at the issues – the devolved matters, both from the perspective of the UK Government and institution side but also from the three perspectives of the devolved administrations.

Given these are joint submissions, I have agreed with Ms Campbell, King’s Counsel, that she will deal with the devolution issues generally for our two teams and the Northern Ireland issues, in particular, of course, so I will move on from that having made those initial comments, if I may.

Can I address start date. Following our written submissions, we were grateful for Mr Keith for giving us notice what he was going to say today in terms of the hearing dates and the delay that he’s inviting you to take with that respect. For the reasons we’ve set out in the submissions, we agree. There is, in our respectful submission, no alternative to that.

I am quite happy to put on record that we don’t doubt for a moment that the Inquiry team has worked hard and diligently but the reality, as we hear today, is, as Mr Keith has mentioned, that we have a total 719 exhibits and documents disclosed and precisely three witness statements relating to Module 1. Mr Keith has updated us in terms of the evidence requests; they have gone up from 114 to 160 since the note was sent to us. That’s the Rule 9 requests, of course, and that number, as we’re given to understand, will rise still further and, as, again, Mr Keith points out, the fruits of those requests will obviously and necessarily inevitably lead to further additional requests arising out of them.

Recently, as Mr Keith has indicated, very significant evidence requests have gone out and, as I understand it, are continuing to go out to individuals rather than organisations and, therefore, the evidence-gathering stage of Module 1 appears to be quite far from completion and the disclosure, which I’ll come on to in a moment, is very much in the foothills.

We were indicated that we would have a witness list in the week commencing 6 March. We were not clear at all how it was ever thought that that could possibly be done, given the outstanding matters of evidence gathering. Of course, that’s 20 days from now. If the request to put the hearings back by a month is acceded to, of course that will provide another month and that will help but, in our submission, that will only properly help if the process is significant changed. I will come on to what I mean about that in a moment.

On the timetable proposed, we would have been asked to provide submissions on the witness list within “a short period” and then for lines of questioning to be provided within about a month; so to commence from 10 April.

Given that we’ve only a small number of witness statements, that isn’t the extent of the problem. We have, of course, the provisional scope document, the six paragraphs that’s on the website, but no list of issues. I have already addressed that on the specific issues of the devolved matters already this morning. That lack of any flesh on the bones of the provisional scope does limit our understanding of what is and isn’t going to be looked at within Module 1. We had been helpfully told that Professor Heymann’s draft report had been received by the Inquiry. The Inquiry had anticipated to disclose it quite quickly and we’re told we’ll now receive in the due course. We’re told that the other three expert reports will be received by the Inquiry only in early March. Again, we have a summary of their scope but we don’t have the letters of instruction and, therefore, we’re not clear about what to expect.

We’re told that on receiving the draft reports, the process thereafter will be disclosed to us but we understand that will give us a period of time to make submissions about what needs to be clarified, if anything, or indeed whether further issues arise. At that point, only then, will we be in a position, a real position, to know how much more work may need to be done by those experts or, indeed, whether there might be lacunae where we would be inviting you to instruct further experts.

We absolutely want the Inquiry to start at the earliest possible date but, on the current process, we’re not sure that another month is realistic. It’s much more likely to be realistic, in our submission, if the changes to the process are made which I will invite you to consider or perhaps reconsider now.

It’s been suggested by Mr Keith that the reason for putting the start date back is to make sure that Core Participants, including the families, are enabled to be fully prepared and that, of course, is a laudable aspiration but we make two points. Firstly, of course, the proposed delay is not due to any inaction on our part but that doesn’t really matter. The cause or the reason for such delay is not our main concern: getting the Inquiry right is.

Secondly, if the hearings are put back, everything possible, in our submission, should be done to engage with us, the Core Participants, to ensure that it can be effective at the new start date, and so that’s why in our written submissions we respectfully asked that there be a change of approach and I repeat that now. If the Inquiry, the families, other CPs, can’t be properly prepared by 2 May, why will the position be different at 2 June or perhaps even some time thereafter?

If we had now proper understanding of the evidence that had been requested, we’d be in a position now to raise where there were any perceived gaps, not having to wait a further period of a week or a month, three months, before disclosure is made of particular documents and statements and then having to look at matters now. If we had a list of issues, even if it’s a running list of issues that is being amended as it goes along, more than the provisional scope, we’d be in a much better position to know the extent of where the Inquiry intends to draw the lines on Module 1.

There had been discussion this morning not only about the devolved issues that I referred to but also about other issues of scope and what will be dealt with in terms of preparedness in Module 1 and what may be left to other modules. If we had the list of issues or a running list of issues now, then that would put us in a position to have proper dialogue with your team to work out how best to progress now and not in a week or a month or three months’ time.

Again, going back to the issue of experts, Mr Keith indicates that having letters of instruction for the experts is neither necessary nor sufficient. Well, I can agree with him on half of that. I would agree with him it’s not sufficient but it would be very helpful indeed to us to have the letters of instructions because we would be able to identify now gaps in what had been asked of the experts and, again, not next week when we might get Professor Heymann’s report or in a month or a month and a half’s time when we might get the other reports.

So that would provide extra time for us, in dialogue with the Inquiry team, to assist you in preparing to make sure that the extra time which we anticipate that you may allow for preparation here will not lead to yet a further delay when we get to that point.

I know these are recurrent themes. I don’t want to tax your patience but the disclosure of Rule 9s, letters of instruction to experts, a running list of issues now, would be likely to greatly assist all Core Participants in helping the Inquiry. It would also send the clearest of messages that the Inquiry welcomes the assistance of all Core Participants.

Specifically on the issue of Rule 9, we’ve made a particular point about the WHO and the Coalition for Epidemic Preparedness Innovations and the point about that was that the Inquiry has entirely appropriately instructed experts to look at the international processes but it didn’t appear to have sought factual evidence of what preparedness there was from the international perspective. I obviously heard what Mr Keith says about the WHO, although perhaps I’m allowed to be a little bit surprised at the WHO’s response to a request for such factual evidence, but that would make it more important, in my submission, to look for other international factual evidence about that preparedness link internationally. We certainly would repeat our submissions about the CEPI, that perhaps it would be appropriate to look wider than that as well.

At paragraph 8 of our written submissions, we have fully recognised, I hope, the practical issues for the Inquiry team in terms of the disclosure process. We obviously have a degree of experience in our team about these matters. We fully understand that it’s a difficult process to undertake.

The Inquiry has indicated that it has 42 draft or finalised statements. Obviously, it is processing them and they will be disclosed at some dates, plural, in the near future, we hope.

Objectively, we are late in the process for such a small number of witness statements to have been received by the Inquiry, never mind disclosed to us, and plainly the Inquiry is awaiting many, many more statements and documentation and, as I’ve already noted and Mr Keith has noted, it’s still sending out evidence-gathering requests. So there is a considerable distance to go before the Inquiry has gathered the material, never mind has undertaken the disclosure process.

There will obviously be disclosure filtering through late in the process. That’s always the case but it would be helpful to know what date the Inquiry team is focusing on where it will be able to say that it’s completed the bulk of Module 1 disclosure and it would be helpful if the Inquiry team could give that some consideration.

One particular factor I want to address that Mr Keith has raised, both in writing and this morning, that has slowed the disclosure process, is the redaction of witness names. As he has made clear, this isn’t on the basis of issues, for example, of national security or Article 2, and matters like that, but simply on the basis that some of the witnesses named in the statements and documents are junior staff.

We can well understand a submission that the identity of junior staff who are not decision-makers may be irrelevant or it may be disproportionate to put their identity into the public domain, but we’re struggling to understand why this is an issue prior to disclosure onto a secure platform only to those who signed the undertaking.

If this is a real issue at all, in our view is one which should arise at the later stage when a witness list is drawn up and plans are made for producing evidence. Two points arise from that, from our perspective. Firstly, the note and Mr Keith’s helpful comments this morning. It’s apparent that this issue, this redaction of the names of junior staff, is taking up a disproportionate and substantial amount of time of his team and the knock-on effect is it is seriously is impeding the disclosure of other material to Core Participants.

Secondly, we’re then being asked to play our part in the process by informing the Inquiry if inappropriate redactions are being made with the obvious difficulty that we don’t know what we cannot see and, with respect to this issue of the redaction of names in particular, then we say that’s the wrong way around and those seeking the redactions should be those that should make the running on that matter.

The solution with respect to this, is that where the only basis for redacting names is the junior status of the person, disclosure should be made without such consideration and then when the plans for adducing the evidence are made, then it can be seen which individuals are actually involved in that and the parent organisation can provide a list of persons to be redacted with the rationale for so doing. That’s likely to result in much shorter lists. We can see what is happening and, so far as I can see at moment, we may well have little objection if departments take a sensible approach.

I’m unaware of any other inquiry where the approach taken here has been adopted. I stand to be corrected on that but I’m not aware of this redaction of junior staffs’ name having occurred in other processes which I have actually worked within. I think it was an issue that was raised in the recent Partygate review but that was a different context and, again, so far as I’m aware, related to publication rather than disclosure to restricted persons with an undertaking.

Finally, with respect to disclosure matters, I’m asked to raise the issue of the IT platform. In fact, this was an issue we raised before any platform was procured by the Inquiry and I note that other Core Participants are raising this, this morning. The platform which is being used has limited functionality. I think that the companies, plural, involved would baulk that idea that it’s the industry standard. What functionality Relativity has is, in fact, restricted and my team has already tried, but unsuccessfully, to persuade the Inquiry team to allow Epiq to give us some more functionality, which is available at very limited cost, we’re given to understand, which would at least ease the process from our perspective.

It is slowing our ability, hampering our ability, to deal with the disclosure as it comes in and that will be exacerbated, given the apparent rapid increase in the disclosure to be made. Members of your team have worked with the other platform that’s being mooted. We’re not asking you to jump ship onto another platform. The last major Inquiry I was instructed in, in fact, had both Relativity and Opus used by the Inquiry team as well as the CP teams. It’s a system with greater functionality which is being used in a number of other major inquiries and major inquests and we believe, overall, it would have a significant cost saving because the greater the functionality the easier and the more quickly the disclosure can be dealt with.

We would ask that that issue is revisited.

In terms of Parliamentary privilege, this is an issue that was raised by Mr Keith in his note and a series of propositions have been made. Many of them we unreservedly say are right and we did do – we set that out in writing, but some of them, we say, go too far and we agree with Mr Keith that the approach that he’s indicated, in terms of the taking of witness statements, taking account of Parliamentary privilege, is a helpful one. For example, in paragraph 27(a) of his note, it’s proposed that where a witness has said something relevant in Parliament covered by Parliamentary privilege, the Inquiry will seek a witness statement covering the same material and that would then obviously not be subject to Parliamentary privilege. That, we say, is a sensible approach to take.

However, we do illustrate the problem through that same paragraph. If the witness is asked to do that and gave a different answer to that, which he or she had given within Parliamentary privilege, would the Inquiry then have to ignore the discrepancy? On CTI’s note, it would appear that that would be so.

In our submission, that’s unlikely to be correct and would lead to a very unsatisfactory result that you would have to ignore the difference between what the witness said in the Inquiry and under privilege, whilst there would be no problem, for example, with The Times or the Daily Mail reporting from the gallery about the inconsistency and there were the potentially unreliable nature of that evidence.

From the discussion by Mr Keith this morning, he has raised a number of no doubt important points, further to his propositions in the note and our response in our written submissions. There are a number of points that he’s raised, which we would most certainly have an answer to. For example, the 1999 Parliamentary Committee considered whether, in fact, to enact a statutory application of Parliamentary privilege within the Inquiries Act proposed legislation and didn’t do so. That could play either way in the discussion.

The fact that the Chilcot Inquiry apparently did consider matters under Parliamentary privilege would potentially indicate that an inquiry can look beyond the privilege because Parliamentary privilege can’t be waived. So the fact that it was a non-statutory inquiry is unlikely to make a difference. The public law point that Mr Keith made, the point about public law, is it may not determine generally – although occasionally it does – liability but it is still litigation, in the way that a public inquiry isn’t.

So although no doubt those are important points that need to be looked at, it probably illustrates the need to actually look at them in a more organised way from each side through written arguments and therefore I think my submission is that we would persist with our point that any Core Participant that would wish to support the propositions, the extent of the propositions, should be invited to reduce those to writing with the supporting law. Then we would be in a position to give a full and proper response in the traditional way with a skeleton argument in reply.

Whether that is something that needs to be done immediately, I’m not as sure but it does appear from the discussion that’s occurred this morning that there are real issues here and ones that are likely to arise and, therefore, I respectfully ask that it should be timetabled so that it can be argued at some point.

In terms of experts, we reiterate the points already made regarding timetabling and our ability to assist the Inquiry now rather than later. With respect to the specific issues of structural discrimination, this is an issue, a big issue, with the families. The issue we have is that there is a body of evidence and a widespread concern about the disproportionate effect on the pandemic on certain communities, particularly black and brown ethnic communities, and the question arises: were known issues, structural issues, structural discrimination issues, properly and sufficiently addressed in preparedness for a pandemic or not?

Now, Mr Keith makes the point that there is a wide breadth to this sort of issue. That’s precisely why we say that it can’t sensibly be dealt with within a general drawing together of health inequality experts and why it needs to be addressed in a dedicated and more specific fashion.

The structural issues – we’ve set some out in the written submissions, so I won’t repeat those – that these are matters of enormous concern, they do very, very much start with preparedness and, therefore, although no doubt they will be issues that will be raised with a number of modules, if not all modules, in our respectful submission they are ones that will not wait until later and it is a major and complicated issue which requires dedicated experts’ attention and we would respectfully ask you to look again at that and look to instructing experts that will deal with it not simply as part of the health inequalities expert evidence.

May I make a point on that, that I’m in no way impugning the expertise of Professors Marmot and Bambra, and I am aware that some of their work more generally does include issues of racial inequalities, so I’m not in any way trying to impugn their work. We’re simply making the submission that these are issues that need to be looked at in detail on their own.

In terms of evidence proposals and Rule 10, the CTI note implied to us that the limited time set aside for Module 1 was being determinative of the question of witnesses and the questioning of witnesses. I am greatly reassured by the comments of Mr Keith this morning and we will revisit that in detail. We will obviously be aware of the imperative of the Inquiry being dealt with efficiently, but we will be persisting with our submissions that having more voices in the room on a proportionate and no doubt time-limited fashion is a matter which not only enhances the ability of the Inquiry to look at witnesses but it also draws in the Core Participants in a collaborative fashion to make the Inquiry work more effectively and, therefore, we will be making those submissions further. But we are reassured by the comments made by Mr Keith.

We note the use of the word “presumption” and we repeat what we said in writing that the only real presumption in Rule 10 must be that there’s a presumption that all relevant questions are asked, whether by counsel to the Inquiry or indeed by others.

In terms of witnesses and the timetabling, I’ve already addressed some of these matters but I want to add three points. Firstly, so far, there’s been no mention of selecting family members with experiences which may illustrate the systemic effect of preparedness failures to give evidence within Module 1. We note, in particular – and no doubt Ms Campbell will refer to it – the material included in the Northern Ireland group’s Rule 9 response but I will leave that to Ms Campbell, if I may.

Picking up, if I may, my earlier submissions on structural discrimination as an example, it’s our understanding that there were no measures to risk assess frontline healthcare workers which included an assessment of the likely disproportionate effect on people from particular ethnic backgrounds, and another might be the effect of a failure to have advance planning for the necessity to isolate patients coming into care homes or to address the obviously foreseeable problem of Covid being brought from care home to care home by agency workers.

These are matters of which family members may well have important direct evidence. Of course, it may be evidence that relates to later modules as well but we would invite you to ask the team to discuss the calling of a proportionate number of family members within Module 1 to address relevant issues.

The second issue is we’ve liaised with the TUC legal team and we support their submission that a witness should be called to deal with the relevance and impact of austerity on preparedness.

The third point is that we ask you to review what we have submitted is a considerably inadequate time estimate for Module 1 but, again, we have been reassured to some extent by the helpful comments of Mr Keith this morning that, indeed, he is inviting you to look at that as well.

May I add a caveat to that? From the outset, we’ve asked you to have the timescale of the whole Inquiry clearly in mind. We’re not inviting you to conduct the Inquiry without a clear eye on expedition or letting it get out of hand. However, we do say that preparedness should be a substantial part of the overall Inquiry. It constituted something like a half of the draft Terms of Reference that we submitted on behalf of the families at the outset. How prepared the UK in its constituent parts was for a pandemic is a necessary precursor to examining the other side of the coin: how appropriate were the responses? It’s essential that preparedness is looked at comprehensively, given that is where your recommendations are likely to be focused, preparing to prevent or mitigate the next time around.

A snapshot or a superficial approach certainly will not do with respect to preparedness. So we would invite you to quite considerably increase the timetable or the timetabling for Module 1.

In terms of opening and closing statements, we note the comments made by CTI. We have no issue with case management and time limits. We just ask that they are subject of discussion rather than announcement, so that we can have some input into those matters.

Can I address the Listening Exercise or the Every Story Matters points. We’ve made quite a number of submissions about this subject. It is a subject which is of very obvious and clear concern to the families and we have two real points to make. As Mr Keith indicated, we have noted in our written submissions that there remains considerable uncertainty, confusion even, regarding this exercise. The latest update tells us the Inquiry has worked with Ipsos and M&C Saatchi to progress the design of the project but it doesn’t explain what that design is.

It asserts that the Inquiry’s looking to procure “several new contracts” to deliver the next phase but it doesn’t explain what the next phase is. We’re told it’s likely to include “research and analytics communications and community engagement suppliers”. We’re not told what experience or expertise is to be required of those suppliers.

We’re told that the Every Story Matters project aims to offer an open and inclusive way for people to share their experience and that the Inquiry is looking for different ways for people to share their story, but the latest update appears to be largely aspirational: what they are looking to do at some point in the future. What the families need, with respect, is a little bit of concrete and they need to know exactly what the plan is, how they are to access it, what the support to them will be, who precisely will interact with them, what will be the experience and training of those persons, what does the Inquiry mean by “trained researchers”, what experience will the research companies have, how will they be quality controlled, how will the Inquiry ensure that “conclusions are methodically robust”?

This is a project which has been in the making for many, many months already. It’s an exercise which will, of its nature, be extremely difficult for bereaved families, and extremely important if it works, and what is needed is clarity and certainty, and we submit that the project should be reduced to writing, to a clear plan setting out exactly how the process will operate and how families and others will be asked to engage with it. It should set out who will be doing what, their training and experience requirements and the timescale. The sweeping statements in the updates, no doubt well meant, but they are not fully informative.

The second point I want to raise about the project is the continuing anxiety regarding the companies involved and there is reference in the update attached to the CTI note to seeking assurances from any potential supplier that they declare conflicts of interest and how they can avoid conflicts of interest if they arise. It is well known that these are matters of acute concern to families and only last week there was further media reporting of companies said to be involved, and the families seek more reassurance than that those bidding for this work will give assurances that there are no conflicts of interest.

I give one example: the openDemocracy website last week cited the two companies that they say have been contracted to the Inquiry and they say that the Inquiry has confirmed that, Saatchi and a company called 23red and the openDemocracy website asserts that both of those companies had contracts to work on the Government Covid response, as well as other Government work.

Another website asserts that 23red actually worked from the Cabinet Office on that work. I’m not commenting on whether those accounts are correct or indeed whether there’s an actual conflict of interest. But there is considerable unease about this and what we seek is a clear indication from the Inquiry as to it using companies which have undertaken what might reasonably be perceived to be a conflict of interest and indeed for companies contracted to do inquiry work to make a public statement concerning any work they have done that could be perceived to be in conflict.

The consequences of not taking a robust and transparent approach to these issues are really quite simple: less families will be prepared to engage and the whole exercise will have less utility and less credibility.

Finally, in respect of commemorations, I’m not going to repeat any of our previous submissions on this subject. You have heard them already , probably once too many, but we do note the current intention to develop video content to be played at the commencement of Module 1. We’re ready to help, we’re ready and willing to engage about this, if we’re informed clearly of what that plan is. The update asserts that the Covid Bereaved Families for Justice has been asked to assist. We’re a little confused by this. There was a consultation meeting in November but we’re unaware as to any further contact about that particular part of it.

That’s no matter. It can be rectified. We ask that it is. Subject to what the plan is, the families want to engage and assist with those parts of the process.

Unless I can assist further, those are the submissions I wanted to make this morning.

Lady Hallett: Thank you very much, Mr Weatherby. I’m very grateful obviously to you and to those whom you represent. As you acknowledge, it’s a difficult balancing exercise to draw between timeliness and effectiveness but I do understand your concerns and I undertake to consider very carefully the submissions that you have advanced today and in writing. Thank you very much.

Mr Weatherby: Thank you.

Lady Hallett: Next I think we have Ms Campbell, King’s Counsel.