2. Submissions by Ms Mitchell KC

Ms Mitchell: Thank you, my Lady. We are grateful to counsel to the Inquiry for the detailed notes setting out matters which are to be addressed in the second preliminary hearing and, of course, for his submissions this morning.

Module 2A, which will look at and make recommendations on the Scottish government’s core political and administrative decision making in response to the Covid-19 pandemic between January 2020 and April 2022, is of course of the utmost importance to the Scottish Covid Bereaved.

The Scottish Covid Bereaved are pleased that the substantive oral hearings will take place in Scotland and look forward to the outcome of discussions with the Scottish Inquiry about the use of hearing venues in Scotland. We are also grateful to the senior counsel to the Inquiry who has contacted me directly and made it clear he is keen to ensure a good line of communication, and he can be assured that we will definitely take him up on that offer. On behalf of the Scottish Covid Bereaved, we wish to make eight submissions on various issues. We hope to keep those brief. (1) The oral hearing start date. We note that the new date for the hearing of Module 2A is between January 2024 and February 2024, and that this Inquiry is trying to avoid clashes with the Scottish Inquiry. We understand from discussions with the Scottish Inquiry that the UK Inquiry is more likely to look at decisions from an overall – an overview perspective, and that the Scottish Inquiry is likely to look at a more granular level at events and decisions which took place in Scotland. If, broadly, that is the way forward, it is imperative that the two Inquiries do not sit at the same time, in order that the Scottish Covid Bereaved can properly prepare for and appear at both those hearings.

Whilst this matter is, of course, particularly acute with Module 2A, relating as it does specifically to Scotland, the request that the Inquiry does not sit at the same time as the Scottish Inquiry overall relates not only to the timing of the Inquiry of Module 2A but also more generally to the hearing dates of both the Inquiries. (2) Co-operation with the Scottish Covid Inquiry. We note senior council’s reiteration of the requirement that this Inquiry has to discharge its obligations independently, and we are grateful to senior counsel for placing that centrally to the submissions that he makes. The Scottish Covid Bereaved does understand that such independence does not require that the two Inquiries act without reference to each other and understand that co-operation is not only appropriate but, in fact, on occasion necessary to avoid significant duplication. We note the terms of understanding between both Inquiries. As must be expected in such a document, this is a high-level paper, which doesn’t explain the detail of day-to-day working arrangements. We look forward to finding out more about the operational arrangements when progress is made.

Of particular importance to the Scottish Covid Bereaved legal team is to ensure that, insofar as possible, there will be as little duplication in relation to disclosure of documents, to avoid unnecessary duplication of work.

We would respectfully ask to be provided with more information in respect of the coordination of the listening exercises. We appreciate and we hear what senior counsel says about the sensitivities involved and how difficult a task this will be. We would be grateful if the Inquiries could confirm whether there are to be two separate recordings of information or will the Scottish Covid Bereaved be able to provide their story of experience to one Inquiry which can be used in the other. We appreciate there are no doubt legal hurdles and issues of privacy to overcome in that regard.

What we would hope, however, is there is, first and foremost, consideration given to those who have lost loved ones in the Inquiry, so that they do not have to give their experiences twice, unless of course they want to.

We are grateful to the Inquiry as well for the acknowledgement of the input of the Scottish Covid Bereaved to date.

3. Rule 9 requests. We note the Rule 9 requests which have been made. In counsel to the Inquiry’s note it is stated that Module 2A has now issued 100 or more formal requests for evidence, including, we now note from this morning’s hearing, the most senior members of the Scottish government.

A summary of the requests and an update on the responses is set out at annex A to the note that senior counsel provided. As has already been foreshadowed, the Scottish Covid Bereaved have identified a number of organisations which it considers may have relevant evidence and where the issue of a Rule 9 request to those organisations may benefit Module 2A. Some of these organisations may have already been identified by the legal team for the Inquiry and a Rule 9 sent. We would be grateful if the Inquiry could provide a note of a list of all the individuals and organisations to whom a formal request has been sent, in order for the Scottish Covid Bereaved to consider that list and to identify what it considers to be any omissions. Again, as senior counsel to the Inquiry has stated, we have already begun the process of submitting names of organisations, but presently have curtailed that in order to avoid suggesting organisations to whom Rule 9s have already been sent. We are grateful to senior counsel to the Inquiry’s comments in relation to suggestions, including that for Refugees for Justice.

Refugees for Justice – who we understand, was refused Core Participant status in Scotland because issues of immigration asylum are reserved to Westminster – are individuals, key members of the community, who were heavily impacted by Covid-19, both in terms of illness, isolation and lack of access to medical support and resources. The membership of Refugees for Justice were significantly involved at a grassroots level with asylum seekers who were moved from their safe accommodation to hotels. Indeed, their leadership includes survivors of the stabbing at the Park Inn, an incident which you may come to hear of, and they are looking for answers to their questions of the treatment of asylum seekers during the pandemic. They, along with other voices, we would submit, are far too often silenced, or indeed not heard at all, and during the days of Covid-19 they appear to be stuck in a parallel existence. Clearly, if the Scottish Inquiry believes it cannot deal with this, then these are matters that, it is hoped, will be considered relevant to the UK Inquiry and, most importantly, this module.

The Scottish Covid Bereaved identified a number of other names which are in our note. It may, of course, be that a number of these groups have already received Rule 9s, but we include Positive Action in Housing, Maryhill Integration Network, Scottish Refugee Council, Savan Refugees 4 Justice, JustRight Scotland and Shelter Scotland. Saheliya, which is a black minority ethnic women mental health organisation too.

We note, further to submissions by this morning by senior counsel to the Inquiry, that two of our suggestions the Inquiry has already sent requests too, that being CRER and BEMIS. Other names of experts that we include may be useful are Professor Andrew Watterson, Professor Philip Taylor, Craig Anderson and Ian Mullen. We have set out in some detail in our written submissions their areas of expertise and, if the Inquiry wants any assistance in getting into contact with any of these people, agents for the Scottish Covid Bereaved have indicated that they can provide those details. Moving on, (4) Disclosure. At the last preliminary hearing, Baroness Hallett responded to our submissions on the leaking of the former Health Secretary’s Matt Hancock’s disclosure of WhatsApp messages. The families we represent welcome the Chair’s recognition of the impact on the bereaved seeing WhatsApp messages being disclosed without any kind of notice.

The Chair assured the bereaved that this Inquiry will make every possible effort to ensure that they have investigated all messages and their content before completing any kind of examination on the role of the previous Secretary of State for Health. But the Inquiry will consider that when all Mr Hancock’s records have been disclosed. While we appreciate investigations are ongoing, the Scottish Covid Bereaved are anxious that answers to these questions are received to these questions as soon as possible. Bereaved families across the UK have, over the past few weeks, watched the corrosive and unseemly drip feed of Mr Hancock’s and others’ WhatsApp messages played out for comment in the public arena. Some of the allegations contained in the Daily Telegraph are deeply unsettling to the families that we represent. Whilst we await a response from the Inquiry, the Scottish Covid Bereaved are aware of several critical press articles and unhelpful interventions by politicians in the last few weeks in relation to the UK Covid-19 Public Inquiry.

The Scottish Covid Bereaved wish us to reiterate that there is only one forum in which the deaths of their loved ones can be robustly and transparently investigated, and this is the UK Inquiry, in partnership, of course, with the Scottish Public Inquiry.

The bereaved families believe no individual, no matter how powerful, can be allowed to interfere with the pursuit of the truth of this Inquiry. The families believe that any attempt to curtail both the scale and depth of the investigation carried out by the Public Inquiry and cast doubt on the format which the Scottish Covid Bereaved have campaigned so hard for, would be a betrayal of their loved ones’ loss of lives to Covid. The Scottish Covid Bereaved rightly expect this Inquiry to robustly evaluate the millions of pages of evidence and to come to its conclusions. There can be no convenient shortcut to this process which is now being called for by some in the public domain. Plus the families we represent accept the media have played a important role in campaigning to uncover failures by the UK government, and must continue to do so, in relation to its handling of the pandemic. It is only this Inquiry that can deliver a legacy and uncover the full scale of what happened in every part of the United Kingdom.

The families we represent welcome Lady Hallett having made it clear she will not bow to the pressures of external interference and await the outcome of the Inquiry’s – into Mr Hancock’s WhatsApps. No doubt similar scrutiny will be applied to all government ministers, devolved or not.

5. Instruction of expert witnesses. We note the names of the expert witnesses who have been asked to provide draft reports and we look forward to providing input into these reports because they’re finalised in the way described by my learned friend, senior counsel to the Inquiry. We would like to know whether or not the witnesses proposed for the UK Inquiry will also be the same witnesses used for the Scottish Inquiry, or whether or not efforts are being made to find different experts for both Inquiries. We note what has been said about evidence sharing, and we appreciate that this will not entirely be a straightforward task, and indeed can see occasions when it would be inappropriate to do so. We would nevertheless like to know what this Inquiry’s view is with regards to expert witnesses. As invited by senior counsel to the Inquiry, we will continue to consider and give the names of any prospective witnesses that we consider may be of assistance to the Inquiry in carrying out its role.

6. Parliamentary privilege. We have already expressed the view that the way in which the Inquiry intends to proceed in relation to UK parliamentary privilege seems a sensible way forward.

We note the Inquiry intends to carry out the same process in respect of select committee reports, where that is required. Again, this would seem a sensible way forward. We would wish to make further submissions to the Inquiry if this proposed route causes any unforeseen problems. As noted, of course, this issue does not arise in respect of the Scottish Parliament. (7) Evidence proposal procedure and Rule 10. We were much obliged to the Inquiry of the incorporation of the Scottish Covid Bereaved proposal that informal approach of meeting counsel to the Inquiry after submission of the Rule 10 be implemented in this Module 2. We hope that seeking to persuade the Inquiry team that there are areas or issues that are of such centrality that they require to be asked during the witness’ evidence, will obviate the need for formal applications to the Chair and thus minimise the administration in that regard. (8) Opening statements. The Scottish Covid Bereaved look forward to having the opportunity to have their voices heard in the opening statements in respect of Module 2A.

We note the necessity for a time limit to be put on the opening statement. In that regard, it would be helpful if Core Participants were given sight of senior counsel to the Inquiry’s opening statement in good time before we are required to submit our statements. That may avoid duplication of issues and also save time.

Unless there’s anything further or my Lady would like me to address anything else, these are the submissions on behalf of the Scottish Covid Bereaved.

Baroness Hallett: Thank you very much indeed, Ms Mitchell, I’m very grateful as ever.

Can I just say this in relation to the WhatsApp messages. As you will know, in relation to them, I have no control over the disclosure of the WhatsApp messages from Mr Hancock. I can’t control it in any way, shape or form, but what I can do is assure the bereaved that this Inquiry is in the process of obtaining all relevant WhatsApp messages from all relevant groups, not just those from Mr Hancock, and therefore this Inquiry will conduct a full and thorough investigation of what the – an analysis of what all the messages mean for the public of the UK. So thank you very much indeed.

Ms Mitchell: I’m obliged, my Lady, and that will be of assistance and comfort to those of the Scottish Covid Bereaved group.

Baroness Hallett: Good, thank you.

Mr Friedman.