6. Submissions by Ms Gallagher, KC

Ms Gallagher: Thank you very much, my Lady. May I just confirm you can see me and hear me properly?

Lady Hallett: I can, Ms Gallagher. May I apologise to you that yet again you come last. I am sorry, this is nothing personal, I assure you.

Ms Gallagher: No problem at all. I of course address you on behalf of the Trades Union Congress supported by junior counsel Sam Jacobs, Thompsons Solicitors and a team at the TUC and, in light of the submissions that have been made by Mr Weatherby, Ms Campbell , Ms Mitchell and Mr Williams, there are some points I won’t need to address orally because we support the submissions that have been made before.

You will recall, my Lady, that Mr Keith, when addressing you at the first preliminary hearing on 4 October, a little over four months ago, referred to having, and I’m quoting from the transcript, an open, indeed eager, frame of mind in relation to certain submissions and suggestions made by Core Participants.

On behalf of the TUC, may I say at the outset that we’re very grateful to Mr Keith and his team for demonstrating that open frame of mind in respect of two important timetabling issues for Module 1 today.

First, the start date of the substantive hearings for Module 1 and, secondly, our proposal of a further preliminary hearing in late March 2023.

My Lady, I intend to address you at the outset briefly on those timetabling matters in support of the application made by counsel to the Inquiry at the outset of this hearing and then to turn to a number of constructive specific requests from the TUC, which will maximise the prospects, we say, of that revised timetable working, whilst ensuring that Core Participants can meaningfully engage and your Inquiry can be as effective as possible in this vital module. We bear in mind, in making these submissions, your commitment from the outset to the core principles of timeliness and effectiveness. We bear that in mind in the submissions that we make in striking the right balance.

So first, on the start date, we strongly support the adjournment application advanced by Mr Keith this morning, seeking to put the start date of the substantive hearings for Module 1 back to early June rather than early May 2023. We are grateful that the Inquiry team recognises that, given the stage that has been reached in terms of the disclosure process in particular, the substantive hearings should not commence in ten working weeks’ time in early May. We strongly support his application.

You will have seen, my Lady, from our written submissions in advance of today’s hearing, dated 8 February from last week, that we had serious concerns regarding the imminence of that hearing due to start in early May, the stage preparation had reached and the consequent inability of Core Participants to meaningfully participate in the process thus ultimately undermining the effectiveness of your process.

In paragraph 3 of those written submissions, we’d highlighted a number of stark facts which included that, as of the date of this hearing today, we understood that of 114 Rule 9 requests addressed to various Government departments, adversely impacted groups and other organisations, only three statements had been disclosed to us, to the Core Participants, and there’s no provisional witness list, no list of issues to be explored and it seemed to us that starting in ten weeks was just unrealistic against that backdrop.

You will see in paragraph 7 that we highlighted the stark reality for Core Participants.

It appears to us from the submissions today and the helpful engagements we have had with your team in the lead up to today’s hearing that some of those concerns expressed particularly by us and by the Bereaved Families groups have been heard and we’re grateful to your team for today’s application to adjourn and we strongly support it.

We emphasise in our written submissions and in the submissions we make today and indeed in supporting Mr Keith’s application for a short adjournment that we do not doubt the diligence of the counsel to the Inquiry and solicitor to the Inquiry team and, indeed, we echo Mr Keith’s thanks to those behind the scenes who we know have been doing a huge amount of work since we met last in this module on 4 October.

Second this morning, Mr Keith supported our suggestion of a further preliminary hearing and you will see, my Lady, we made that suggestion at paragraph 10 of our written submissions. We had requested a further preliminary hearing this side of the Easter break, which comes in the first week of April; in other words, in approximately six to seven weeks’ time in late March 2023.

We note that this morning Mr Keith indicated that this could potentially – if you were minded to list a further hearing, it could potentially take place in late March, possibly 28 March and, again, may we say that TUC strongly supports that suggestion and we further submit that leaving it any later than 28 March would run the risk of derailing even a delayed start date for the final hearing or, indeed, having the alternative effect of the hearing proceeding without Core Participants having an opportunity to meaningfully contribute to the direction of travel and the finalising of plans for that final hearing.

So, my Lady, we strongly support – this is long, we agree, but the reason I’m giving you some of that detail is it then informs the submissions which will follow. So we agree to the proposal to move the start date back to early June. We think it’s realistic and appropriate, and we agree to the proposal of a further preliminary hearing and we ask that 28 March, the proposed date from Mr Keith, be fixed and indeed that it be fixed today.

Against that backdrop, we emphasise, my Lady, that even if you agree with what Mr Keith, I think, described as a modest adjournment, if you agree with that, that would still mean us being 14 working weeks away from Day 1 of the final Module 1 substantive hearing and that still leaves a great deal of work to do in a very short space of time, particularly given some of the points made by Ms Campbell before the lunchtime adjournment regarding slippage.

Against that backdrop, my Lady, we make four interlinked constructive requests for the process between now and 28 March and between now and early June. Some will be familiar to you, a drum we’ve been banging for some time, and you’ll note the overlap between the submissions we make and the submissions made by other advocates this morning.

So the four points I want to address you on briefly, my Lady are: number 1, disclosure; number 2, the scope of this module; number 3, the need for transparency in the Inquiry’s road map; and, number 4, the expert reports.

So first in terms of disclosure, this may sound obvious but we ask for disclosure to be made to us as early as possible. It’s clear that there is very substantial disclosure outstanding, possibly, to use a phrase from this morning, hundreds of thousands of pages and, in our written submissions at paragraph 3(b) that I took you to a little earlier, we referred to, of 114 known Rule 9 requests, us having only three statements and my rather dubious maths puts that at about 2.5 per cent of disclosure.

We now learn there may be 160 requests putting us at about 1.8 per cent of disclosure. We fully appreciate 160 requests does not necessarily equal 160 statements but it does seem to us clear that the vast, vast majority of disclosure is yet to be seen by any Core Participants.

We ask practically that there be a commitment to, at the very least, best endeavours that the vast majority of this disclosure be made prior to the date of the proposed next preliminary hearing, 28 March. 28 March is just before halfway before the proposed rescheduled date in early June. It will be only two months before the hearing date is due to start. Inevitably within that two-month period Core Participants will be asked to engage with lists of issues, evidence proposals and other matters, and that simply cannot be done without the majority of the disclosure being complete by the time we meet again and us meeting again in late March.

Now, we realise that your team cannot do the impossible. We heard Mr Keith today say very frankly that he cannot guarantee that all disclosure will be completed by mid-March as previously anticipated but we ask that the majority of disclosure be complete by the end of March and, if there are difficulties with that being achieved, the 28 March hearing would then be vital to take stock and ascertain what can then be achieved in what will only be eight weeks until the final hearing is due to start.

So we think that date is critical and we think vast majority of disclosure being completed by that date is also critical and there will only be eight weeks left to go.

Second, my Lady, scope. You will recall that we’ve raised concerns regarding issues concerning the scope of Module 1 previously, including at the last preliminary hearing on 4 October and we continued to raise some questions about that in our written submissions today. We’re essentially now told our questions will be answered by the Rule 9s but, of course, we still don’t have the Rule 9s. May we remind you, my Lady, of our words on 4 October, four and a half months ago, it’s page 105 of the transcript for that hearing. We, along with Mr Weatherby and others at that hearing argued for early disclosure of the Rule 9 requests, both as a matter of principle and practicality, and we said this in respect of practicality, if you will forgive me footnoting myself a little earlier, but you will see why. So, my Lady we said this:

“Our submission is that it would be efficient and time saving to disclose the Rule 9 requests and to do so early. We noted Mr Keith’s words this morning referring to the Rule 9 requests already made being described as lengthy, complex and wide ranging. We assume, as they are lengthy, complex and wide ranging, it’s likely to take some time for the resulting witness statements to come back to you and your team. The advantage of Core Participants having early sight of those Rule 9 requests is that we can feed in, we can identify if there are gaps, we can suggest additional queries or clarifications on the ambitious timetable you’ve set out. We’ve under seven months to the start of May. We can see preparation of these statements may take some months.”

We finally said this, my Lady:

“We do not want to be in a position which is we hit spring 2023 and we start to receive statements which make clear that there was a blind spot or a gap. We want to avoid that.”

My Lady, it is now spring 2023. We’re actually in a worse position than anticipated on 4 October, as the disclosure process is running behind and, in our submission, the case for disclosing the Rule 9 request now is even stronger than it was on 4 October. So we ask that our October submissions be revisited on this point, given what has happened since and where we now stand, and the fact that we now are, if you grant the adjournment, 14 weeks from there start of the hearing and we remain largely in the dark.

We note that express submissions have already been made on this point today by Mr Weatherby, Ms Campbell and Mr Williams and we support all the submissions they made.

Now, of course, if the disclosure could be completed or substantially completed imminently, the need to see the Rule 9 requests would be weakened, although we do support Ms Campbell’s submissions as a matter of principle in any event. We revisit this request now because it seems to us clear that we will be receiving disclosure very close to time and, given the pressed timescales we have between now and the start of June, having sight of the Rule 9s a matter of weeks earlier could be helpful and could make the difference between the revised timetable set out by your counsel this morning being workable or not.

This, of course, is an inquisitorial process. It’s not civil litigation. When we see the disclosure or if we see the Rule 9 requests, if we as Core Participants identify gaps, it will be no good if we do that within weeks or days of the final hearing. That will just derail the process. That’s why we asked for transparency earlier. That’s why those first two requests are interlinked.

The scope uncertainty, my Lady, also overlaps with our disclosure request in one other way. Today Mr Keith, in his oral submissions, indicated that Module 1 would address high level preparedness but not, as he put it, sectoral and operational preparedness which will be addressed in later modules. Now, we of course recognise at a theoretical level that Module 1 will not necessarily consider all the logistical nuts and bolts of particular sectors which you will be doing a deep dive into in later modules. But beyond that theoretical acceptance, there’s very little we can say to what Mr Keith has said this morning because we cannot currently tell what the line between high-level preparedness and sectoral and operational preparedness will, in fact, look like, again because we don’t have the disclosure, we don’t have the Rule 9 requests.

We’re concerned that this may be – and I put it no higher than that – a false dichotomy but, in reality, we cannot engage with this properly and make helpful submissions to you until we see the disclosure or indeed, in the absence of the disclosure, we see the Rule 9s. That’s why I anticipate this may be an issue to which we need to return at the March hearing, if you list a March hearing and maybe we are reassured when we see the Rule 9s, or when we see the disclosure, there is no false dichotomy, the line is clear. We cannot tell.

So at the moment, we are unable to engage beyond hearing the phrase uttered by Mr Keith this morning in recognising, in theory, that that may be a viable distinction until we actually see the material we can’t engage with that properly.

By way of one very simple example, my Lady, just to concretise this, the Civil Contingencies Act of course established local resilience forums, a key part of the preparedness for civil emergencies but it’s one thing to understand the legal framework for local resilience forums; it’s quite another to understand how in practice those forums operated, how they were funded, the adequacy of that. At present, we simply have no idea how those issues how the distinction between legal framework at a high theoretical level and practical preparedness in terms of funding and how they operated in practice, how that will be dealt with in Module 1 or indeed in later modules.

It may be that we are reassured when we know more but, if not, the sooner we know the better and, certainly, in good time before the 28 March hearing so we and other Core Participants can address you on those issues when there will still be time to shift matters prior to an early June start date eight weeks out from that hearing.

Third, my Lady, and closely related, we request that the Inquiry provide additional detail regarding the provisional overall road map for the Inquiry, in other words further detail regarding the intended future modules. Now, you have heard from me and Mr Jacobs on this issue before and we deal with the issue in our written submissions at paragraphs 11 to 15 but it comes into very stark relief when we are a number of weeks away from the first intended substantive hearing and we remain without detail about how Module 1 will fit with later modules.

Now, our understanding from earlier preliminary hearings was that detail of future modules would have been forthcoming. The only real reason not to have done so was pressure of resources at the Inquiry, which we understand and are sympathetic to. But, so far, since we raised this issue in October, the only further information we have is the indication in the January newsletter from the Inquiry about certain topics that will be included in future modules. Now, we’re grateful for that additional information but the overall envisaged shape of the Inquiry remains unclear to us. With Module 1 fast approaching, it seems to us essential that we have a better understanding of how Module 1 will fit with the remainder of the Inquiry. The issue of pandemic preparedness is obviously of vital importance. It may well result in some of the most significant lessons to be learnt in this Inquiry but, at present, we do not have a clear understanding of how this topic will fit with the later modules and we want to assist you, my Lady, rather than making repeated submissions saying we’re in the dark, we don’t know. So we would like to have a clearer picture prior to the next preliminary hearing so we can consider it, take instructions, make informed submissions.

Our core point is so long as the Inquiry continues to resist revealing its thinking as to future modules to Core Participants and indeed to the public, Core Participants are excluded from that consideration. We lose the opportunity to assist you and, worse, we’re having to make submissions which may be badly informed but we don’t know they are badly informed because we don’t know the thinking behind the scenes. We suggest that’s not efficient and it doesn’t assist you and it doesn’t assist your team.

It’s particularly important to have efficiency when you are dealing with Core Participants like the TUC who don’t have large independent resources and are not in receipt of public funding.

Fourth, my Lady, on expert reports, we’ve not yet seen any expert reports, of course, so we’re limited in what we can say at this stage but we do have a specific request regarding process. We’re grateful for the update in relation to Professor David Heymann. We understand we’ll now see his report within the next ten days, in other words by late February, and the process, as we understand it, has been that your team received a first draft, then went back to him, that draft was revised and a further version is then received and then will be finalised and then disclosed.

So there’s a process where a draft comes in and there’s a period of some weeks when your team has access to it and Core Participants don’t.

Now, with the other outstanding experts’ reports, we’re now told, and thank you to Mr Keith for this, that we will receive them by late March as we anticipated may be the case, you I will know, my Lady, in paragraph 18 of our written submissions. We have two requests. First, we request that all of those reports be disclosed prior to the next preliminary hearing. If the preliminary hearing is on 28 March, every effort must be made to have disclosure of those reports prior to that hearing, otherwise I’m afraid we’ll all be back saying you need another preliminary hearing. It may well be you do need a further preliminary hearing but it seems to us, to ensure that’s effective eight weeks out from a start date of early June, if we have the reports, we can engage, we can make submissions.

We can hear that may well be tight, given the process followed with Professor Heymann and the back and forth and that’s why we make a second request, my Lady, which is that when the first drafts of those reports are received, they be disclosed promptly to Core Participants. We, of course, recognise that they are working drafts and that they may be subject to revision but we ask that they be disclosed at that stage. We are all subject to the undertaking. We will receive them on the basis that they are working first drafts and that they may be subject to revision but that will allow us more time to consider them, to take instructions and to make submissions which ultimately will help you.

So there are our four specific points, my Lady. We also, of course, support the request made by Mr Weatherby orally today and made in writing at paragraph 32 of the joint written submissions of the Covid-19 Bereaved Families for Justice and the Northern Ireland Covid Bereaved Families for Justice, that the TUC give oral evidence, given the vital importance of the TUC’s evidence concerning preparedness, resilience and its links to the austerity agenda and funding cuts but I anticipate they are issues on which we will need to address you in March when we have more information, more disclosure and we can make informed submissions about key witnesses. But at the present we, of course, support that.

My Lady, in conclusion, may I say that the submissions we made today are drawn from a recognition of your strong commitment, which we commend and support, from the outset to those core principles of timeliness and effectiveness. We bear very much in mind the assurance that you gave at the 4 October hearing that you will do everything in your power to achieve a sensible and fair balance, with the Inquiry being as thorough as possible whilst also being determined that this is not an Inquiry which will drag on for decades producing reports when it’s too late for them to do any good.

We are very conscious of your principal aim which you have described from the outset of being to produce reports and recommendations before another disaster strikes the four nations of the United Kingdom and the importance of learning lessons as quickly as we can in order to reduce the number of a deaths, the suffering and the hardship and we’re grateful for the ambitious timetable you have set with that in mind.

The submissions we have made today seek to ensure that this final substantive hearing in Module 1 does take place as soon as possible, using the timetable outlined by Mr Keith today but also that it’s effective and that Core Participants’ voices, experience and expertise are heard and considered. If this timetable is put in place today, we have 14 weeks and we will have six to seven weeks before the next hearing. There is much to do. We’re grateful for the shift in timetable proposed by Mr Keith this morning. We support it but the only way we will be able to make that timetable work and be effective is if we are let in before the 11th hour.

That’s why our core submission today is more transparency, earlier disclosure, earlier transparency, so that Core Participants can be as effective as possible and ultimately assist you in your goals, my Lady.

Unless I can assist you further, those are our submissions.

Lady Hallett: Thank you very much indeed, Ms Gallagher, as constructive as ever.

I do understand your concerns, I hope that’s been apparent this morning, about the proposed start date and of course disclosure. In my view, as it seems to be the view of all the participants, far better delay the start by a week or more, or up to four weeks, than start early and then not be ready and not be effective. So I am sympathetic to those submissions.

If I do decide to delay the start, it will of course affect the other modules and it’s one of the reasons why you don’t have as much information as you would like and I would like you to have on the later modules.

I hope you accept that I am somebody who believes in openness and directness and I have – I’m not resistant to people knowing what my thinking is, it’s just that there has never been an Inquiry with so many issues and so many complex issues and some of my thinking does have to change as we go along. I have deliberately not set the later modules in stone because we have to be flexible.

But I can assure you and the other Core Participants that whenever I feel it is appropriate and I’m in a position to reveal more, then I will because I know that it does help you and the other Core Participants if you have as much information as possible.

I can also assure you that I’m doing my very best to get the disclosure to you as soon as possible, again because I totally and utterly accept that the Core Participants can only participate effectively if they have sufficient time to prepare properly.

So your submissions and the submissions of your colleagues have not fallen on deaf ears, I can assure you of that. What I can necessarily do about it may be limited but I promise to do by best. So thank you very much.

Ms Gallagher: Thank you, my Lady.

Lady Hallett: Does anybody else – before I ask Mr Keith if he wishes to make any further submissions, has anybody else contacted Mr Smith, solicitor to the Inquiry?

They haven’t, in which case I can turn to you, Mr Keith, for your concluding submissions.