3. Submissions by Ms Campbell

Ms Campbell: My Lady, may I start by saying I’m grateful to Ms Morris this morning. The power of her submissions will not be improved by my repetition of them and your Ladyship knows well that on behalf of the Northern Irish bereaved families we are working closely with the UK family team, as well as indeed many other Core Participants, so as to identify areas of common concern and to strengthen the voices of those whom we represent and to bring to the fore the issues of importance to them.

We hope that that approach also really reinforces our commitment to ensuring that you meet your objective to balance depth and detail of your Inquiry, the efficacy of the Inquiry and of your investigation against the time available and, of course, the passage of time. However, we are always alert to the risk that the issues that are unique to Northern Ireland, and therefore don’t attract that distinct and adequate focus, not for the first time I will say and I know not for the first time, my Lady, you will hear that Northern Ireland is in a unique position both geographically and politically. And it is in this module, focusing on central Government decision-making, that that concern about a possible failure to consider the unique position of Northern Ireland is perhaps at its highest.

Did the UK Government adequately and fully consider the unique impact of the pandemic on the population of Northern Ireland, and did decision-making at a central Government level reflect our unique position? Those are questions that cause a great many members of the bereaved families whom we represent concern. It is for that reason that at paragraphs 8 to 11 of our joint submissions we raise queries also as to the extent of your team’s consideration of our unique position. I know that my Lady has reassured us, as has your counsel team in the past, that those issues are under detailed consideration.

We have heard this morning Mr Keith’s response to some of the issues that we raised and, of course, it is useful to know that Northern Ireland specific questions have been raised and Rule 9 requests been sent to ministers such as Michael Gove, being one example. But we do note, however, that neither of the two members of Parliament who held the role of Northern Ireland Secretary of State appear to have been approached for their input via the Rule 9 process and we raise that as an issue of consideration, particularly important, it might be thought, given the lack of a functioning executive in the north at times.

We note also that it appears that relevant counterparts in the Irish Government, certainly don’t appear to have been approached or asked for such assistance that they might be in a position to give. I say “it doesn’t appear to” because of course we are working from the information that your team has very helpfully given in the note ahead of this module.

If this module is really to identify lessons learned and issues that need further consideration to ensure that the suffering of the people of Northern Ireland is lessened in any future pandemic, it is going to be imperative that those central Government decisions and consideration of cross-border, cross-country and cross-Governmental issues are tackled and we therefore urge, both in writing and today orally, that your team commence that process now.

As I said, my Lady, it is useful to learn today that there is detail in Rule 9 requests that focus on particular agencies asking questions about Northern Irish specific issues. But learning that today perhaps illustrates another concern that our membership has and that is one of disclosure and, indeed, transparency.

You will be acutely aware, my Lady, that for many, if not all, of those who have lost family members and who firmly believe that the deaths were avoidable, confidence in central Government decision-making has been damaged, if not in some cases completely broken.

Of course, this Inquiry has an important function in rebuilding aspects of that public confidence. There are, we contend, building blocks that can be put in place now. My Lady has heard this morning from Ms Morris, and indeed at previous preliminary hearings, these requests that I now echo: firstly, transparency in the evidence-gathering process; disclosure of the detail of Rule 9 requests; from a Northern Irish perspective, at least disclosure of those questions that have been asked of ministers or agencies that focus in particular on Northern Ireland and not simply, although we are grateful for it, an update in a preliminary hearing.

Linked to that, transparency also in the disclosure process itself and timely disclosure. My Lady has heard that before and I won’t repeat it but, of course, the fact that the hearing dates have moved back to the autumn should not allow for any slippage in terms of timely disclosure to the families. We have, as has your team, an enormous amount of work to do.

The other building block is ensuring that the voices of the bereaved and the families whom we represent are heard. My Lady, we don’t underestimate for a single moment the enormity of the task that you have and the enormity of the task that the Inquiry team faces, nor do we underestimate the diligence with which they approach their tasks. We understand and appreciate that. But we do reiterate the submissions of this morning, and those made in earlier preliminary hearings, that clarity of process and equality of access are of fundamental importance. Rule 10 requests perhaps illustrate this most vividly.

We will of course work with any procedure that you put in place in terms of written questions and in terms of the opportunity to liaise with your team to identify areas of questioning. But it is our submission that your Inquiry will be the poorer if the voices of those who were most gravely impacted by the pandemic are not heard through the questions that are asked on their behalf by those who closely represent them. My Lady, I know that the Inquiry’s approach to this issue remains open, and I raise it this morning simply to reinforce once again just how important it is likely to be going forward to ensure that the Northern Ireland bereaved families feel that their voices are being heard as part of your Inquiry.

Thank you.

Baroness Hallett: Thank you very much indeed, Ms Campbell. You ask some important questions. I will do my best to discover the answers to them. I’m afraid I don’t know off the top of my head who has been approached by Rule 9 requests, other than what Mr Keith told us earlier, but we will find out. Obviously today’s focus was 2 rather than 2C but we can make sure that the information is available. So thank you very much indeed.

Ms Campbell: Thank you.

Baroness Hallett: If we could turn, please, to Mr McCaffrey.

Mr McCaffrey: Good morning, my Lady.

Baroness Hallett: Good morning, Mr McCaffrey.

Submission by MR McCAFFREY

Mr McCaffrey: Kevin McCaffrey and I appear before your Ladyship today in lieu of Ms Mitchell, King’s Counsel, and on behalf of Scottish Covid Bereaved instructed by Aamer Anwar & Company Solicitors. Your Ladyship does of course already have our brief written submissions. However, I would wish to add, equally briefly I hope today, to those written submissions.

Firstly, we welcome your Ladyship’s introductory remarks with regard to your aim and indeed intention to conclude this Inquiry as soon as possible. We also understand this will necessarily take considerable time, despite your Ladyship’s stated aim and in order to do justice to all those affected by the pandemic.

The families comprising Scottish Covid Bereaved we represent at both the Scottish and UK public Inquiries were advised that they could be waiting several years before proceedings are concluded, and to place their faith in the ability of both Inquiries to deliver a robust Inquiry that will provide answers and enable lessons to be learned on the handling of the pandemic. Your Ladyship’s decision to produce interim reports and recommendations is particularly welcome in these circumstances.

Your Ladyship is obviously aware of, and has already been referred to, the news last night that over 100,000 WhatsApp messages of the former health secretary, Matt Hancock, containing over 2.3 million words were leaked to the press. It will be unlikely to come as any surprise to your Ladyship of how shocked the members of Scottish Covid Bereaved were to learn of this. If what it appears is contained within those texts is correct, then it would demonstrate that ministers of state at the highest level were making critical decisions on matters of the utmost severity via WhatsApp. Undoubtedly, ministers would know that such messages cannot be requested by freedom of information requests.

Some of the allegations contained in the press are who deeply horrifying and upsetting for the families we represent. Foe example, some of those allegations claim that testing of those discharged to care homes, despite strong advice to do so by the Chief Medical Officer, it appears was ignored on the basis of meeting testing targets. If true, we submit that revelation alone goes to the heart of the stated aims of Module 2 as contained in paragraph 2 of the provisional outline of scope.

We are aware that many lawyers have been going through the process of redacting names from tens of thousands of pages of recovered documents as is normal in public inquiries. While we, as representatives of our clients and Core Participants to the Inquiry, must sign undertaking to protect the confidentiality of all Government disclosure, the impression from last night’s revelations is that the former health secretary had provided the entire contents of over 100,000 of his messages that contained critical decision-making detail during the pandemic to his biographer. It appears to us that the Prime Minister, former Prime Minister, cabinet ministers, chief medical officers and senior civil servants are likely to have been engaging in the to and fro of these messages.

We submit that anything less from Mr Hancock would, for the bereaved families, significantly damage the integrity of both the UK and Scottish public inquiries and that is to release all of these texts to the Inquiry on demand. It appears clear from last night’s revelations that the Cabinet Office were privy to this material released by Mr Hancock to his biographer, and that they had the right to veto such disclosure. Therefore, the question we are bound to ask is whether such crucial material has, in fact, been released to the Public Inquiry without redaction?

It would, as we are sure your Ladyship will understand, be deeply insulting to the families if they have to read redacted material whilst the same material was being leaked in full on a daily basis through the media.

In the prologue to his pandemic diaries, Mr Hancock claims he disclosed all his records to this UK Covid Inquiry. As a result, those instructing Aamer Anwar & Company seek the Inquiry legal team’s clarification as to whether those texts have indeed been fully disclosed and, if they have not, that the Inquiry would now direct immediate and full disclosure.

While it is trite to observe, we submit that no individual, no matter their current or previous office, can be allowed to interfere with the pursuit of all of the facts that this Inquiry is intent on achieving.

To turn to the Inquiry dates, my Lady. Scottish Bereaved are grateful for the update from the Inquiry legal team on Rule 9 letters of disclosure in relation to Module 2 and we note that, as a result of the postponement of Module 1, Module 2 will now take place from 2nd October 2023 until 7th December 2023, although we note these dates are still provisional in line with the comments made by counsel to the Inquiry earlier.

Your Ladyship already has our submissions on Parliamentary privilege and it is not necessary to repeat them here today. However, we accept that …

Baroness Hallett: I don’t know if you can hear me, Mr McCaffrey, but your screen is frozen.

Mr Keith: My Lady, we appear to have lost him. I wonder whether you want to consider electronically rising. Oh no, we’re back.

Mr McCaffrey: I do apologise. Hello, my Lady. I hope you can hear me now.

Baroness Hallett: We can, thank you, Mr McCaffrey.

Mr McCaffrey: Sorry, just a glitch in my internet connection.

I think I had got just to the Inquiry dates, my Lady, and I hope you heard what I had to say before that.

Baroness Hallett: Yes and you had then moved to Parliamentary privilege.

Mr McCaffrey: I’m obliged, my Lady.

As I said, my Lady, your Ladyship already has our submissions on Parliamentary privilege and it is not necessary to repeat those here today.

However, we do accept that the disclosure of Rule 9 requests has been covered in the submissions of many of the Core Participants and we do not wish to rehearse that either. But we would note that if the Rule 9 requests were to be disclosed to Core Participants, then this would obviously provide some way of assurance to the families of Scottish Covid Bereaved, and others of course, of exactly what has been requested.

We are obliged to counsel to the Inquiry for suggesting that the informal process which we proposed in Module 1 to consult with counsel to the Inquiry before invoking Rule 10(4) is to be included in the present module.

We believe that such an informal process will be likely to obviate the need for matters to be put before the Chair in that module and would ask that the Chair endorse this suggestion. Again, CTI’s comments today are noted and we will refer to any further clarification on that point that we may seek.

We note that in Module 2 the Inquiry will look into core political and administrative governance and decision-making for the whole of the UK, which we submit is directly relevant to the revelations of last night in connection with the WhatsApp messages being disclosed and already referred to. Module 2A will of course look at matters from a Scottish perspective and we now have had the opportunity to read the memorandum of understanding agreed between your Ladyship and the Scottish Inquiry Chair, Lord Brailsford, in relation to the conduct of the Scottish and UK Inquiries which was made available to us on 23 February.

We note that both Inquiries commit to providing clarity about how each will discharge its terms of reference, minimising duplication and maximising value to the public purse, and that the practical steps necessary are being put in place to achieve those ends.

Scottish Covid Bereaved ask that we will be updated in respect of any substantive decisions that are taken in the way that the Inquiries intend to interact, including the way in which evidence and documents will be shared. We again appreciate counsel to the Inquiry’s comments in that regard this morning.

We note from counsel to the Inquiry this morning a request for a statement and materials associated therewith has been made to the First Minister of Scotland. As referred to by Ms Campbell of Northern Ireland Covid Bereaved Families for Justice, we trust that further requests will be sent to those other ministers in the Scottish Cabinet and their advisers in due course. However, we also accept that this is perhaps a decision that will be taken with reference to and in conjunction with the Scottish Inquiry and included in Module 2A of the UK Inquiry.

We further acknowledge and appreciate the clarifications of your Ladyship and counsel to the Inquiry this morning as to the proposed newsletter and webinar which will provide further detail of how the Every Story Matters Listening project is to be progressed. Also to counsel to the Inquiry for addressing the perceived issues surrounding those companies which may be involved in the operation of that exercise.

Again, and as previously submitted, members of Scottish Covid Bereaved will have suggestions on how this might be best achieved and welcome the opportunity to attribute to the process.

We are also grateful to the Inquiry for reflecting our earlier request and indicating its intention to minimise the impact on those who wish to participate in both listening projects. We understand that our previously voiced concerns that the UK and Scottish Inquiries will not sit at the same time have been accepted, and for Scottish Covid Bereaved that is an important matter as clearly the group has a significant interest in both Inquiries. However, it does not appear that this has been specifically addressed in the terms of the memorandum of understanding and Scottish Covid Bereaved would welcome clarification on that point.

We note that both Inquiries will give consideration to incorporating findings or recommendations made by one Inquiry into the evidence of the other to the extent that such has been arrived at by the time required for the purposes of the other Inquiry. This will enable us better to understand what is proposed. Clearly, each of the Inquiries are separate and requires to carry out its own investigations. While we acknowledge that with co-operation between the two Inquiries (which we hope will be time, effort and cost saving,) Scottish Covid Bereaved will welcome the assurance that each Inquiry will be properly independent when it comes to the assessment of the evidence before it.

Further, and in line with our position in submissions for Module 3 yesterday, we once again acknowledge and adopt the submissions of those other Core Participants with regard to the specific issues arising in relation to structural racism and ethnicity. We welcome both your Ladyship’s and counsel to the Inquiry’s comments in these regards this morning.

Unless I can be of any further assistance, your Ladyship, those are the submissions on behalf of Scottish Covid Bereaved.

Baroness Hallett: Thank you very much indeed, Mr McCaffrey. In relation to the Scottish Inquiry, as you know, I explained how Lord Brailsford and I and our two teams have been working closely together, but I can assure you, and I’m sure you would accept (Lord Brailsford is still a serving judge in Scotland and I was a judge for a long time) nobody is going to interfere with our independence. So I can assure you we will be firmly independent, both of us, in our different Inquiries.

As far as the other important matters you raise are concerned, I can only imagine the impact on the bereaved seeing the WhatsApp messages disclosed without any kind of notice. As you know, it had nothing to do with this Inquiry. But what I can do is assure the bereaved that this Inquiry will make every possible effort to ensure that we have investigated all the messages and their context before we complete any kind of examination of the role of the previous Secretary of State for Health.

So we will also check the question you asked about whether all Mr Hancock’s records have been disclosed. I think that probably covers most of the matters I can deal with today but, if there are other matters, we will get back to you with answers as soon as we can.

Thank you very much. Thank you, Mr McCaffrey.

It is now Mr Williams. Mr Williams, you are there. Have you been having problems this morning?

Mr Williams: I have, my Lady. I understand that I owe you and the audience an apology for trying to intervene in proceedings when I’d somehow cut myself off from the proceedings themselves.

Baroness Hallett: Don’t worry, Mr Williams. These things happen to all of us and, as you know, I had to apologise for a coughing fit. So don’t worry.

Mr Williams: Well, my Lady, I’m just sorry that I had to reveal my incompetence with computers so early in these proceedings. I was hoping it might come somewhere towards the end.