2. Submission by Ms Morris

Ms Morris: Good morning. I alongside Mr Weatherby KC represent the Covid-19 Bereaved Families for Justice. We have made joint written submissions with the Northern Ireland Covid Bereaved Families for Justice, and I have agreed with Ms Campbell KC that she will deal with the sections of our joint submissions in particular that pertain to Northern Ireland.

I propose to draw out and emphasis some of the key points we press upon you from our written submissions, which I know you and your team will have considered carefully.

I would like to focus on five topic headings. The first, I would like to make some observations on the scope of Module 2. The second, some short points on timetabling and hearing dates. The third, some short points on Rule 9 and disclosure. The fourth topic, evidence and experts. And the final topic, the fifth topic, the Listening Exercise and correct commemorations.

In terms of the first topic I would like to start with some observations on scope, please, and at paragraphs 3 and 4 of our written submissions, we have made the observations that at the start of the pandemic the UK economy and the UK society had been subject to ten years of austerity and public sector cuts. In our submission, the core political and administrative decision making in relation to the pandemic cannot be properly examined without understanding the economic and political context within which they were made.

The Covid-19 pandemic revealed that due to austerity, public institutions and some households in the UK were in a vulnerable and weak financial position, which left them struggling to mitigate the immediate and devastating consequences of the pandemic.

We invite the Inquiry to examine the role and impact of austerity on political and Governmental decision making and the outcomes of such decision making particularly on vulnerable and at-risk groups.

The second observation I would like to make is in respect of structural racism. I have listened very carefully to what Mr Keith KC said this morning and I also had the benefit of listening to what was said by yourself, my Lady, and those participants who attended the Module 3 preliminary hearing yesterday.

The Inquiry has identified within the provisional scope of Module 2 that it will address the likely impact of the Government’s response, including measures such as non-pharmaceutical interventions, on at-risk and other groups, particularly in light of “existing inequalities”.

We note that structural discrimination and racism are a central and crucial example of such existing inequalities. The link between structural racism and racial and ethnic inequalities has been long recognised and continues to confront us in our daily lives in areas such as housing, access to healthcare and within the criminal justice system and places of detention. We therefore repeat our submission that the Inquiry should include an understanding of structural racism and discrimination in its examination of the key issues for Module 2.

We should say that it does that not only – by calling witnesses from the bereaved and other Core Participants and other groups whose experience of the pandemic were exacerbated by structural discrimination, as well as by obtaining relevant expert evidence. The Families were disappointed to hear counsel to the Inquiry from Module 3, Ms Carey KC, say yesterday, in the first preliminary hearing of that module, that structural racism is “obviously important matters within society today but …” far broader reach than the terms of reference for this Inquiry.” It has been said again that inequalities are at the forefront of minds, but including these matters is neither necessary or proportionate, although it may be a matter that the Chair wishes to keep under review as the Inquiry progresses.

We are grateful for your confirmation this morning, my Lady, that you’ve not made a decision in relation to the issue. However, the comments that were made yesterday do not give the Families the complete confidence that Mr Keith, counsel to the Inquiry for this module, asserts that he has that the underlying issues, the causation of those inequalities, will be addressed.

Inequalities may well be at the forefront of minds, but in our submission the Inquiry can only have a deep understanding of the impact that this devastating virus had upon our social body if it has a full understanding of our social body’s pre-existing conditions, our existing ailments, which we all must accept includes structural racism, which impacts the lives of millions of black, Asian and minority ethnic people within the United Kingdom.

We simply pose a logical question: how can the Inquiry understand inequalities without understanding the underlying social conditions which are likely to have led to those inequalities?

As my co-counsel, Ms Munroe KC, said to you yesterday on behalf of the Bereaved Families, my Lady, it exists. It is an uncomfortable truth that we must grapple with. Structural racism intersects and impacts on all modules of your Inquiry. It is a key underpinning reality in each module. In our submission the Inquiry can’t understand systems responses without understanding the underlying system itself and cannot ignore the reality of those systems.

Ms Munroe and Ms Gallagher KC pressed upon you yesterday on behalf of the TUC the need to understand the devastating figures regarding the disproportionate rate of deaths for black, Asian and minority ethnic men and women. We agree. But to understand what the inequalities were, you have to understand why they occurred.

As Mr Burton, King’s Counsel, highlighted yesterday in his submissions on behalf of the DDC and Mind, in his analysis of structural ableism, the causes of inequalities may be well known but not well understood. We agree that the Inquiry should seek to identify inequalities and their causation within the scope of the pandemic response.

We agree with Mr Thomas KC that this Inquiry must tackle the root causes head on in order for the Inquiry to fulfil its mandate and to restore trust. We agree that it would be a grave mistake for the Inquiry not to examine these root causes.

To be clear, my Lady, the Families are not asking you to conduct an inquiry into structural racism, they are asking the Inquiry to recognise the reality: it exists, and it existed prior to January 2020.

What we say is the Inquiry must understand what it is, how it operated and how it led to the pandemic having a disproportionate effect on black, Asian and minority ethnic communities. As with any area that is outside the expertise of an Inquiry, we say the only way to understand the position is through expert evidence.

We note the submissions made by Federation of Ethnic Minority Healthcare Organisations about the need for the Inquiry to understand how pre-existing health inequality occasioned by structural racism was understood by Government emergency planning and how this pre-existing health inequality would probably result in disproportionately adverse health outcomes within communities of colour.

We agree that it is an integral step in then identifying within Module 2 if there were any specific measures taken by the Government to address the disproportionate effect of Covid-19 on those communities beyond those applied to the general population.

Mr Dayle will no doubt develop these points with you later in this hearing, and we endorse what is said in their written submissions, but I wanted to add the point that his submissions on behalf of healthcare workers and those made by Mr Thomas KC yesterday also apply for the community more widely, and that our Bereaved Families urge you, my Lady, to consider the issue and the centrality of it to their experience.

We also note and agree with the written submissions made on behalf of Southall Black Sisters highlighting the intersectionality of structural inequalities where individuals share a number of protected characteristics.

My Lady, we entirely appreciate the depth and breadth of the Inquiry’s task in Module 2 and press the point because, in our view, it is a foundational issue that can only assist the Inquiry’s understanding of the key issues.

I will now turn to my second topic addressing the issues of start date and timetabling. In respect of the start date, the Bereaved Families accept that it was inevitable that the Module 1 timetable would change, which of course would have an impact on the Module 2 timetable. We welcome the pragmatic proposals regarding a new start date and a further preliminary hearing.

We agree with the proposals that there should be a second, third and fourth preliminary hearing in the summer and then in September of this year, given the proposed start date of 2 October. We do see the merit of there being two further hearings to ensure things remain on track. The concern we raise is about the hearing length. Without a clearer sense of the witness list and list of issues it is not possible for us at this stage to provide any alternative proposal, but we would be assisted by further clarity regarding timetabling to allow us to make practical and helpful proposals to you my Lady.

I will then turn to my third topic, Rule 9 and disclosure. In respect of the Rule 9 requests, Mr Weatherby, King’s Counsel, has made our position clear in previous detailed oral and written submissions, and we renew our request for disclosure of the Rule 9 requests and press upon you our previous submissions.

With the reports in today’s press regarding leaked WhatsApp messages from the former Health Secretary, Mr Hancock, the Families more than ever need to have a full understanding of what’s been requested from whom, and therefore have the ability to contribute our assistance in identifying gaps in disclosure.

The Families deserve to be in the Inquiry’s circle of trust. They do not deserve to be left reeling from media revelations regarding documentation that, I’m sure your team will agree, is clearly within the Inquiry’s scope.

We are pleased to hear counsel to the Inquiry’s request this morning that others with relevant evidence to give do so, and quickly, but we expect this request to be followed by further Rule 9 requests where these individuals are known.

We note that our submissions find support in those made on behalf of FEMHO. We agree with their practical observations that the disclosure of the Rule 9 requests won’t create an additional layer of work for the Inquiry – we understand they have enough to do – and that we remain committed and focused on identifying gaps. We agree that unless it is done, it is likely that identification will happen at a time too close to the hearings, leaving little opportunity for matters to be addressed, which can only be to the deficit of the equality of the investigation.

We have raised specific questions in paragraphs 18(a) to (e) of our written submissions, and asked for a list of organisations and bodies to which the Rule 9 requests have been issued, and are grateful for the further detail to be provided to counsel to the Inquiry this morning.

We made a specific observation regarding groups representing people in custodial settings and places of detention. Mr Keith this morning has indicated this is likely to be an issue for consideration in another module. We maintain it is relevant to Module 2 and would appreciate further clarity on the Inquiry’s thinking on this particular topic.

I then turn to my fourth and penultimate topic, evidence and experts. Touching first on disclosure and redactions, which we have addressed at paragraph 20 of our written submissions.

Our concerns are about the Inquiry’s legal team’s broad approach to redactions which, in our submission, will impede our rapid scrutiny of the material, given the fast pace that we must all adapt to between now and the commencement of the oral hearing dates.

We are concerned that any delays in disclosure will hinder our ability to identify legitimate lines of Inquiry and adversely affect our Families’ effective by participation in the Inquiry. So we repeat our submissions from Modules 1 and 3 that there are practical ways outside of the broad and time-consuming application of redactions to ensure that Core Participants receive full and efficient disclosure whilst preventing the names of those not directly involved in decision making entry into the public domain.

We have documents disclosed to us within an undertaking, and we and the Families are required and will maintain confidentiality, no matter how difficult. Our practical suggestion is to speed up disclosure, and it is easier and more sensible to do that redaction process if and when a document needs to enter into the public domain.

Moving then to the disclosure platform. At paragraph 21 of our submissions we renew our concerns about the current disclosure platform and we echo the request made by the children’s rights organisations in their written submissions that a note be circulated on the issue of functionality of Relativity and that practical conversations continue between CPs and the Inquiry legal team.

Members of our team, my Lady, have worked with Relativity for over ten years and are aware of its potential functionality and its limitations, but we submit there are seven commonsense aspects of its functionality which can be enabled to make the work of the Inquiry and the Core Participants easier and more cost efficient.

On a short and important point, we now have over 30,000 pages of disclosure for Module 2. This will increase, as Mr Keith said, exponentially over the coming days, weeks and months, and our team of counsel and solicitors will work tirelessly and at pace, as we know your team will, to prepare for the oral hearings, and this task is not underestimated.

We note and support the submissions made in respect of funding by the TUC, who will undoubtedly play an important role in this and other modules. We know of a similar position in regards of funding in respect of Solace Women’s Aid and also support their submissions. We agree without proper funding being made available to all non-state Core Participants the already daunting task of preparing for the Module 2 hearings becomes an impossible task, and the Inquiry risks losing the voices of key bodies that represent millions of people affected by the pandemic.

I will next touch on Parliamentary privilege. We won’t repeat our detailed arguments from Module 1 and we welcome your indication, my Lady, that you will keep the matter under review. We do submit that this should be approached in an organised and timetabled way as it will inevitably be a live issue in Module 2 given the issues that it will examine. If it’s not approached in an organised way, the Inquiry and the Core Participants will be left to deal with it in an ad hoc piecemeal way, probably shortly before the oral hearings are due to commence which can only be exploited by witnesses who may be reluctant to engage with the full scrutiny of the Inquiry and who may choose instead to hide behind a reliance on Parliamentary privilege.

One can think of examples of Parliamentarians who, when faced with statements made outside of Parliament or on WhatsApp messages which conflict with what was said within Parliament, may decline to repeat in a witness statement what they did state on the record in Parliament and claim that there is no requirement that they do so, using Parliamentary privilege as the justification. This is likely to be a live issue and soon. That is why we say the issue must be resolved now.

I will move then to the instruction of expert witnesses. Touching again on our submissions about the need for expert evidence on the issue of structural racism, we repeat our submissions about the need for the Inquiry to have the assistance of expert evidence to provide the foundation of understanding necessary to analyse the disproportionate impact of the pandemic response.

We welcome the instruction by the Inquiry of the experts they have identified for Module 1, Sir Michael Marmot and Clare Bambra, on health inequalities but note, as we did in our submissions for that module, that neither of these experts have an expertise in structural racism; so repeat that there remains a lacuna in the expert evidence that would assist the Inquiry.

In respect of the letters of instruction, we set out in paragraph 27 of our written submissions our clear position. We continue to see no reason why they are being withheld from Core Participants. Having them now would allow us to prepare for the provision of comments to the Inquiry and do so in a way that is most effective and constructive to their task.

It has been said this morning that we will be able to evaluate the draft reports. Well, of course we can. We can only really evaluate the draft reports in relation to the sufficiency to which they meet the requirements of the letter of instruction.

May I move then, my Lady, next to dealing with evidence proposals and the Rule 10 procedure.

Counsel to the Inquiry have accepted that this Inquiry will follow the normal run of events and that Core Participants can apply to question witnesses under rule 10(4). We reiterate that the only meaningful way to provide for the effective participation of the bereaved families is for the Chair to exercise her discretion in favour of allowing Core Participants to ask their own questions of witnesses. As Ms Munroe said yesterday in the Module 3 hearing, it is essential the bereaved families have confidence in the Inquiry.

There is a significant benefit to having a diversity of questioners with a diverse area of expertise, representing a diverse range of real individuals with diverse lived experiences. It is those lived experiences, my Lady, of the bereaved families, their nuances and their complexities which infuse everything that we, as counsel and solicitors for Covid Bereaved Families for Justice and Northern Ireland Covid Bereaved Families for Justice, do on their behalf. In our submission, in order for the bereaved to be at the heart of this Inquiry, their voices must be heard not just in the evidence they can give but in the questions that they can ask.

To be clear, my Lady, our questions to the Inquiry will be focused and relevant and will always be intended to assist your Inquiry, not elongate it nor divert it on irrelevant tangents. We are a counsel team with a depth and breadth of experience in public inquiries and know from that experience that it is perfectly possible for a sensible and collaborative relationship to be established between counsel to the Inquiry and representatives, which includes a formal process and a dialogue about lines of questioning, but which also enables representatives to ask those questions of witnesses directly within the structure of the Rule 10 process and your own case management guidance.

Mr Keith this morning has said that Core Participants may be permitted to meet counsel to the Inquiry and can, to use his words, return to the fray and argue the points with CTI as to the topics that they say is relevant to the Inquiry’s scope. He’s also reiterated that all Core Participants can apply to you for permission under Rule 10(4)(4) to ask questions themselves. The families trust that this is a recognition that the topics can be the subject of formal and informal process and dialogue but that you, my Lady, will be unfettered in exercising your discretion in permitting Core Participants’ permission under Rule 10(4) in the usual way.

I’ll turn then to my fifth and final topic and make some short points about the Listening Exercise and commemorations. In respect of the Listening Exercise, the matters raised in our Modules 1, 2 and 3 submissions reflect the strength of feeling of the bereaved families in relation to the Listening Exercise. We welcome the Chair’s ruling that the consideration will be given to ways in which the Inquiry’s communication with our families will be improved, and we welcome the endorsement this morning of a trauma-informed approach, which of course is significant when listening to the lived experience of the bereaved.

I repeat and endorse the submissions made by Mr Weatherby on 14 February in the Module 1 pre-hearing. The families need transparency on conflicts of interest in respect of those being appointed, and being considered for appointment, for the delivery of the Listening Exercise, including the criteria the Inquiry is applying to such conflicts, if any, and how such conflicts are being considered.

Consideration of those conflicts of interest should also include perception of such conflicts given the trauma involved in bereaved family members assisting this process. Mr Keith’s provision of further details, involving the use of 23red this morning, is the detailed information that the families require of all the contractors and subcontractors so that they can decide whether they perceive the existence of a conflict. The fact that 23red dealt with Government communications and messaging doesn’t in the view of the bereaved families remove any conflict, given the issue of Government messaging is within the scope of Module 2 of this Inquiry.

We note the written submissions on behalf of disabled people’s organisations, which also request the Inquiry to adopt a robust and transparent approach, clarifying who has been appointed to carry out the work of the Listening Exercise and how any conflict issues have been resolved.

In terms of the practicalities of the exercise itself, we listened carefully to your Module 3 opening remarks yesterday, my Lady, and this morning, and we welcome the further information indicated in this week’s newsletter and the forthcoming webinar.

Finally then, my Lady, on the commemorations. We welcome the Inquiry’s continued work around the commemorations and the bereaved families remain committed to assisting you with that task. We welcome your team’s approach to the families to discuss the establishment of a meaningful and long-lasting commemorative programme. On this, and all other matters, my Lady, we will continue to assist your Inquiry and your team.

Unless I can assist you further, my Lady, those are my submissions.

Baroness Hallett: Thank you very much indeed, Ms Morris. Extremely helpful and, as you have acknowledged, I have not made a decision on some of the important aspects of your submissions and obviously, as soon as I have made a decision, I will let you all know with my reasons. So thank you very much indeed.

I think it is now Ms Campbell.

Ms Campbell: My Lady, yes. I hope you can hear me and see me.

Baroness Hallett: I can do both. Thank you, Ms Campbell.