3. Submission by Mr Lavery, KC

Mr Lavery: Yes, because we thought – well, certainly I thought that, because we had made a joint submission with the Bereaved Families for Justice for England and Wales, that it would more naturally follow on that I would endorse those written submissions, my Lady, first of all, and of course the oral submissions from Ms Munroe.

I don’t intend to be very long because of all of the reasons that have been set out already. Your Ladyship has those submissions.

There are three areas really that I just wanted to look at very briefly. The first is the permission of questioning and Rule 10 requests. Your Ladyship will know, and I say it for the benefit of anybody else listening, that there are quite a number of Core Participants now, and the role of the bereaved families, of our families, is, we say, key, and it is important that that key role is not diminished.

One way in which the importance of the role of the bereaved families may be looked at in due course is whenever and – if we make requests for permission of questioning, because what we would say about that is that we have a direct connection with those most affected by the pandemic, we are speaking to them and our clients come from a broad range of backgrounds, ethnicity, as do the lawyers that represent those people, and from diverse practices that represent individuals largely in, very often, the human rights context.

The diversity, the difference of approach is something which we think would be of value in due course in terms of not only the type of questions that might be asked but also the perception that people are having questions asked by people who represent them and represent their interests.

The second issue I wanted to deal with was this listening project, and you have referred to that already in your opening remarks this morning. What I wanted to make clear about our submissions about that was we’re not really suggesting a replacement of the listening project. What we are suggesting is something which I understand now the Inquiry is open to, and that is if there are personal accounts which are illustrative and probative that that is something which may be of benefit to the Inquiry.

We say that, and I reminded your Ladyship of this on previous occasions and I know we are in a different modules, but the Listening Exercise that you carried out in Belfast and the first-hand accounts of the victims, and I say it once again, I don’t apologise for that, my Lady, in many ways the public who will be watching this Inquiry have a right to experience that as well. They have a right to encounter those individuals, they’ve a right to be informed of a very personal account and the right to share it.

We think that that can only enhance the Inquiry’s role and the outcome, which is what we’re looking at. It will maintain a sense of humanity and proportion in the whole context of this Inquiry. But as I say, that is not suggested as a replacement of the Listening Exercise, which, as you have pointed out, will involve a much broader section of those people affected.

The third issue I wanted to deal with then was a uniquely Northern Irish perspective on this scope. It is not clear from the scope how exactly the Inquiry will look at the impact on the Northern Ireland healthcare system and again I’ve said this in previous submissions, about the uniqueness of that. Briefly, first of all, that we have a combined health and social care model; secondly, that there are cross-border elements to the healthcare service which is provided. We say that in that context it is essential that a Northern Ireland expert on health and social care be appointed who will fully understand that complex relationship and who will fully understand the impact of the pandemic on the healthcare system.

As part of the impact on the healthcare system, one has to understand how dire the prevailing healthcare system was in Northern Ireland before the pandemic, and it was described by an academic in a recent judicial review as “catastrophic”, “appalling performance”, and “in a state of functional collapse”.

In June 2021, for instance, the proportion of people in England and Wales who were on a waiting list for over a year was 9 per cent and in Northern Ireland it was 57 per cent.

So we say that it must be understood what the prior state of the healthcare system was before the pandemic hit.

Lastly, looking at the model of Northern Ireland in that health and social care are combined, it’s very different from the England and Wales model and, in looking at the Module 3 and the scope of that, it’s going to be difficult, we say, in a Northern Irish context to completely separate social care from healthcare. It may even be that one of the findings of the Inquiry is that there was a better response in Northern Ireland because of the combined nature and that there are lessons that the other parts of the United Kingdom might learn from that.

That’s all that I would like to say, my Lady.

Lady Hallett: That’s very helpful, Mr Lavery. As I said to Ms Munroe, I have read, obviously, the submissions with great care. So thank you very much indeed.

Mr Lavery: Thank you.

Lady Hallett: Mr McCaffery.

Submission by MR McCAFFERY

Mr McCaffery: Thank you. Good afternoon, my Lady.

My Lady, Scottish Covid Bereaved are grateful to counsel to the Inquiry for once again providing a detailed note of the background to the setting up of the Inquiry, also the input which your Ladyship has had in recommending the inclusion of an express mandate within the draft terms of reference to allow for the provision of interim reports and the publication of recommendations for consideration before the end of the Inquiry and which it is hoped will avoid any unnecessary delay and their potential implementation.

We also particularly welcome your Ladyship’s recommendation that the Inquiry be open to the accounts of the many people, including those members of the Scottish Covid Bereaved, of their experiences during the pandemic and any disparities on the impact which it had on them and/or relatives.

Module 3 will of course consider the entirety of the United Kingdom albeit there are different healthcare structures across the four nations. This obviously has the potential to duplicate matters, which will be explored within Module 2A, relating to the strategic and overarching issues from the perspective of Scotland and indeed matters which are bound to be considered by the separate Scottish Inquiry.

We note and welcome the intention to minimise any duplication of matters, not only with the Scottish Inquiry but it is also assumed in relation to Module 2A.

It will be useful, my Lady, to get further detail of how Module 3 will interplay with Module 2A in due courses.

Scottish Covid Bereaved particularly welcome the Inquiry’s stated intention to draw on information provided to the Listening Exercise, Every Story Counts, when examining the general impact of governmental and societal responses is the pandemic, and many within Scottish Covid Bereaved look forward to contributing to that exercise.

The scope of Module 3 is obviously wide, and members of Scottish Covid Bereaved appreciate that many of the issues which are of critical importance to them have been included in the 12 stated areas to be explored within this module: the restriction on visiting relatives in hospital, provision for end of life contact, isolation of elderly patients, issues around testing, availability and suitability of PPE, the arbitrary imposition of do not attempt cardiopulmonary resuscitation instructions, to mention but a few of these.

We also acknowledge that this list is not exhaustive and remains provisional at this stage.

Rule 9 letters and disclosure. My Lady, while Scottish Covid Bereaved accept that Core Participants will not be provided with copies of the Rule 9 requests made by the Inquiry, we do look forward to receiving and will welcome the monthly updates which will be provided by the solicitor to Module 3, together with the disclosure to Core Participants of the recoveries subsequently to intimation of the Rule 9 letters.

Further we hope to be and will certainly aim to be of assistance to counsel to the Inquiry in identifying any additional and appropriate avenues of investigation, any other organisations and witnesses on whom letters ought to be served, or further topics to be included in the Module 3 hearings.

Expert witnesses, my Lady, we look forward to receiving further information on the identities of the experts who will be instructed to prepare reports on the issues to be considered in Module 3. Also to have the opportunity to provide observations on those reports prior to their finalisation.

We also welcome the opportunity to provide suggestions as to who might be instructed to provide expert evidence and areas in which they might be required to give such evidence.

In relation to the Listening Exercise, Every Story Counts, commemoration and pen portrait material, Scottish Covid Bereaved particularly acknowledge the interest expressed by the Inquiry in hearing of the specific and very individual experience of the families involved in Scottish Covid Bereaved. They look forward to those experiences being included in reports which will be fed into modules where appropriate and relevant, and appreciate the fact that these will be formally included as part of the Inquiry’s record.

It will of course be obvious to the Inquiry that those members of Scottish Covid Bereaved have a particular interest in the opportunity to participate in the commemoration exercise, Every Story Counts, and they look forward to taking part in that process and the Inquiry’s recognition of the suffering of all those concerned.

They acknowledge that arrangements are being made for the commemorative memorial and the ability to view that in due course at the hearing centre during the public hearings and online on the Inquiry’s website, and again await with interest further details of progress with that.

Those members of Scottish Covid Bereaved who wish to provide evidence on systemic failings which they consider relevant to their own individual circumstances and how they were impacted by these will endeavour to provide such evidence for the Inquiry’s consideration and potential inclusion in Module 3., for example, and it was referred to in counsel to the Inquiry’s note, bereaved family members, those shielding, those suffering from post Covid conditions such as Long Covid sufferers and healthcare workers.

They will all have relevant experience or evidence to provide in relation to such issues and will be able to provide lived experience of the issues as they were affected by them and their relatives.

I’d also like, my Lady, to acknowledge the submissions in respect of ethnicity and structural racism made by our friends, the Covid-19 Bereaved Families for Justice, and we would ally ourselves with those submissions.

Finally, further acknowledge the fact that the experience of the bereaved families are central to the Inquiry and will be at the core in assisting the Inquiry in arriving at its stated aims.

That completes the submissions on behalf of Scottish Covid Bereaved in respect of Module 3 of the Inquiry and we look forward to discussions and further discoveries and hearing updates of the further hearings in due course, my Lady.

Unless I can be of any further assistance, my Lady.

Lady Hallett: Thank you very much indeed, Mr McCaffery. Extremely helpful. As far as the Scottish Inquiry is concerned, as you know, and as counsel to the Inquiry outlined earlier, we had a meeting last week and I was very encouraged by the very positive approach both Inquiry teams are taking. They seem to be working well together and Lord Brailsford and I expressed exactly the same aim, which is we wanted to work together to avoid duplication wherever we can and give clarity to the Scottish people.

So I was – I hope – I’m optimistic – it may not be straightforward in every respect but I am optimistic that we can achieve our aims. So thank you very much.

Mr McCaffery: Thank you.

Lady Hallett: I think it is Mr Williams next.