7. Reply Submissions by Mr Keith, KC

Mr Keith: Thank you, my Lady. May I commence by making some points, some general points about the disclosure process and the submissions which have been made in relation to that.

Plainly, the issue of disclosure lies at the absolute core of the debate about the hearing date and the timetable. It is obvious and it probably requires no further elucidation that the Inquiry team will strain every sinew to get the documents out the door to the CPs as quickly as it can. Contrary to one of the suggestions, there is absolutely no point at all in using any delay in the start of the process, if that is what you order, as an excuse to delay the disclosure process. How could that possibly be the case?

The Inquiry team recognises completely the absolute need to get the documents to the Core Participants, so as to get them fully engaged, and we have no doubt, my Lady, that you will set a date for the commencement of the hearing that properly reflects the reality of the disclosure process.

But I need to make plain that the disclosure process will in no way be hastened by disclosure of the Rule 9s, contrary to what was suggested by Mr Weatherby. Knowledge of the Rule 9s is not the same, of course, as having receipt of the documents which come in response to the Rule 9 requests because only the documents highlight and can highlight the issues, highlight the nature of the witness evidence which is to come and can set out the overview of the hearing itself.

The disclosure process will obviously continue and it continues as fast we can make it run on a rolling basis. We don’t and we can’t wait for the receipt of all the documents before disclosing them. They will go out of the door as soon as each individual document finds its way through the review process and is obviously the subject of a decision on relevancy and all the appropriate redactions are made.

It necessarily follows that there will come a time when the vast majority of the documents have been disclosed but it won’t mean that there is a hard-edged date by which all the documents will be received by the Core Participants. Some documents may just come in late and they will have to be disclosed as soon as the review process is complete thereafter.

In relation to the list of issues, or perhaps they may be described as a road map, helpfully, by Ms Gallagher, the list of issues, a list of issues is obviously going to be of assistance to the Core Participants because it highlights or will highlight the overall approach taken by the Inquiry to the forensic material. But we’re unable to provide a list of issues until we have read and analysed all the statements but, in particular, the statements which have been received very helpfully from Core Participants themselves in which they set out, to a very large extent, the sorts of issues that they would wish you to examine.

Many of them – they all make very good points. Many of them are reflected in our provisional internal list of issues but not all and we obviously need to take account of what is said there before we draw up a list of issues.

But, my Lady, with your permission, may we therefore proceed to try to get the list of issues out to the Core Participants in the next three weeks? There would be little point, it seems to me, in providing a running list of issues or, in other words, a provisional list of issues because, firstly, such a document can’t replicate and can’t prejudge the job of reading the documentary material and, secondly, there would seem to be little point in raising in a provisional list issues which don’t ultimately see the light of day and are reflected in the public hearing itself.

Mr Weatherby made some submissions in relation to the redaction process concerning the names of the junior officials. My Lady, may I raise just a note of caution. He referred repeatedly to this process as being one by which the names of witnesses were redacted. This is not a process which concerns the redaction of the names of persons who may or will become witnesses in due course. These are emails and policy documents – emails primarily – which refer to the names of junior officials who are not concerned or were not concerned in the decision-making process or played such roles as lacked significance, such that they will not be witnesses or are very unlikely to be witnesses in due course.

That is, of course, why their names are irrelevant. Because their names are irrelevant, it is not material or information which the Inquiry is obliged to disclose, for the obvious reason that the obligation is to disclose relevant material and those persons who have no meaningful role to play at all in the forensic inquiry in which you are engaged have their own personal data entitlements which allows them to say properly, “If we are not witnesses and we’re not likely to be witnesses and nothing that we have done is within the scope of your Inquiry, why do our names matter and why should they be disclosed?”

Turning to a further issue raised by Mr Weatherby, which was the issue concerning the assistance which he believes that his clients and family members may give in relation to the provision of evidence in Module 1. This is a matter, my Lady, upon which you have already ruled. Of course, you ruled on the principled issue of whether or not the Inquiry would receive in Module 1 pen portrait evidence or evidence from the bereaved or other members of the public which doesn’t relate to systemic issues and that caveat is extremely important and it’s right that I emphasise it, not least because you emphasised it in the course of your ruling, given after the 4 October preliminary hearing.

You ruled that you had not received such evidence but you would of course receive evidence where it goes to an issue in a module and you gave there very good example of Do Not Resuscitate orders as being an issue on which, in principle, bereaved members of the public could or would be able to give evidence in relation to.

So, my Lady, that’s a matter which has already been raised and addressed but, naturally, if in the course of the preparation for Module 1, it does happen that there is evidence which is relevant from bereaved to an issue then, of course, it will be treated like all other evidence which is potentially relevant.

The further submissions were made in relation to the Listening Exercise and Every Story Matters. My Lady, quite a lot of information was, in fact, contained in annex 7 to the note from the CTI of 30 January but we acknowledge, of course, that the Core Participants have a very natural need for concrete detail. The reality is that, as the system for the Listening Exercise is put into place, as it is like pieces in a jigsaw, the detail of it will naturally emerge. There is, as I’ve said already, a plan for a webinar in the next couple of weeks, to which the Core Participants, of course, will be made welcome and will be invited to, in which further details will be provided.

The reality is that this very complex, detailed system, which will require a great deal of many resources is put into place and as it is developed, obviously the detail of it will become more and more clear because it is a system to which all Core Participants, like every member of the public in the United Kingdom, will be able to contribute and so they will necessarily be able to see the exact shape and nature of it.

The next issue concerns the submissions made by Ms Campbell, King’s Counsel, concerning disclosure of the Rule 9s. As I’ve already submitted, disclosure of there Rule 9s themselves will not really advance the position of the Core Participants. Firstly, in principle, there’s obviously no rule of law practice that necessarily provides for provision of the Rule 9s but, secondly, they have already been provided with the names of the Rule 9 recipients and, through the updates, a broad overview of what each of the Rule 9s addresses. That information says a lot about the nature of the Rule 9 requests themselves.

But thirdly, and most importantly, it is by receipt of the documents and the statements at the conclusion of the disclosure process that the Core Participants are enabled to understand precisely what is in issue because it’s the documents and the witness statements which provide the foundation for the public hearing, and that is why implicit in the submissions that you’ve heard, and in particular the submissions from Ms Gallagher, there is the recognition that by the time they get the documents the need for the Rule 9 requests themselves will have fallen away.

On the question of experts, the Core Participants have received a considerable amount of information about the topics that the experts address. The information provided in the annexes to the CTI note represents the substance of what the experts have in fact been asked. You received a request for the materials referred to in the letters of instruction to be disclosed in advance of receipt of the substance of the reports themselves. We would suggest that that would simply provide for an extra additional level of administration. There is very little purpose to be gained in providing the Core Participants with the materials to which the experts may in due course refer to in their final reports when they will, of course, be receiving the draft reports themselves in due course.

In relation to whether or not the experts would properly be covering the same areas in relation to and across the border Scotland, Northern Ireland and Wales as they are in relation to the rest of the United Kingdom, I absolutely assure the Core Participants that they have been asked to address, of course, the devolved administrations and they could not sensibly have been so otherwise.

The submissions turned, through Ms Mitchell, to the issue of the process by which some of the documents were being disclosed but Ms Mitchell made the point, with which we have considerable sympathy, that the way in which the Core Participants have received the documents is not altogether efficient, primarily because they’ve received documents when they have been made ready for disclosure as opposed to, for example, receiving statements with links to the exhibits to which the statement refers. That, I’m afraid, is simply a reflection of the fact that some of the documents have taken longer to be processed through the disclosure procedure and we felt it best that they should receive any document, whether are not it was accompanied by its fellow documents, as soon as they were ready to be disclosed.

In relation to the submissions from Mr Williams, I too would like to assure him that Wales is in no way being considered as an adjunct to the United Kingdom. It is firmly within the scope, and indeed the provisional list of issues, but more so we have issued a considerable number of Rule 9s to Welsh-specific Rule 9 recipients from the Welsh Government, the Welsh TUC, the Welsh LGA, to ministers, civil servants, the Wales Council for Voluntary Action, Department of Health and Social Services Group in Wales, Disability Wales, Climate Change and Rural Affairs Directorate in Wales. So we have very much the affairs of Wales and the way in which the pandemic affected Wales and also the issue of preparedness very much in issue.

I should also say that the Core Participants (in this particular regard, the Covid-19 Bereaved Families for Justice Groups in Wales, Scotland and Northern Ireland) have produced, through the statements which they have provided in response to the Rule 9 request directed specifically at them, very helpful indicia of the sorts of issues that we should be looking at and must look at and that has helped us, and will continue to help us, to ensure that the right issues are identified and swept up in your review.

Finally, in relation to the submissions from Ms Gallagher, she invites you to order that the expert reports be disclosed prior to 28 March, being the date upon which you may be ordering a next and further preliminary hearing to take place upon. We will obviously aim to disclose the expert reports as soon as we can but there would, in our respectful submission, be little point in tying an order that they be disclosed to the date of the preliminary hearing, if there be one, because a breach in such an order of itself wouldn’t require a preliminary hearing to be heard and, in any event, the way in which the practice is meant to work and is envisaged to work is that as soon as the Core Participants get the expert reports, they will be responding to us in writing with their comments, with their observations, with any queries that they have, and, most importantly, by identifying any further areas that they would wish us to ask the experts to consider. That process will take place as soon as they receive the expert reports. It doesn’t need to wait for a preliminary hearing.

You were also invited to fix the date for a preliminary hearing today but our position is that you would need to first rule on the anterior issue of whether or not Module 1 should be adjourned and, of course, that is not a decision which we suspect that you will make or rule upon today and, therefore, it wouldn’t be right for you to make any orders in relation to the date of a further preliminary hearing since that is a subsidiary issue.

My Lady, those are all the matters that I would wish to raise by way of reply submission, unless there are any other areas that you would wish me to address.

Lady Hallett: Thank you very much, Mr Keith. I’m very grateful.

Thank you to everybody who has attended and who has provided helpful submissions. I’ve now said several times that I am very grateful and I will consider those submissions carefully. Two matters that I must make a decision on as soon as I can: one, whether or not we have a third preliminary hearing as suggested by a number of the participants, particularly Ms Gallagher; and also whether or not I move the proposed start date from May until June. I know that people need to make arrangements, they need to know my decision on those issues as soon as possible, and so those are definitely matters that I will be making public as soon as I’m in a position to do so. Other matters may be taken in rather slower time. Some matters may not need to be ruled upon at this stage but I will also make sure that any decisions are made public as soon as I have completed them. So thank you to everybody again and that concludes this second preliminary hearing into Module 1.

Thank you.

(3.03 pm)

(The Inquiry adjourned)