Transcript of the Third Module 1 Preliminary Hearing, 25 April 2023

(10.30 am)

Lady Hallett: Good morning. This is the third preliminary hearing for Module 1. We are only weeks away from the substantive hearings, which should be held at our hearing centre and will be in person as well as streamed online, and at which witnesses will be called.

Not surprisingly, there are a large number of issues to be considered today to ensure that we’re all as prepared as we can be to make the hearings as effective as possible in June and July.

So I shall limit my opening remarks to those, and I shall ask Mr Hugo Keith King’s Counsel to provide more details of the issues that he wishes to raise and those matters that he wishes to comment upon raised by the core participants in their submissions – and I thank them, as ever, for their very helpful written submissions that I have considered very carefully – and, therefore, we only need to focus on the most important matters today.

Mr Keith.

1. Statement by Lead Counsel to the Inquiry

Mr Keith: Thank you, my Lady.

As you know, and as you’ve said, this is the third preliminary hearing in Module 1, the first two having been held by you on 4 October and 14 February.

My Lady, I don’t propose to reintroduce the core participants or their legal representatives. There remain 27 core participants in Module 1, and all remain legally represented. We welcome them all, of course, to this hearing.

Written submissions for today have been received from eight core participants, in one case jointly. And I believe that you’ll be hearing oral submissions from five of the core participants, that is to say from Covid-19 Bereaved Families for Justice, Northern Ireland Covid-19 Bereaved Families for Justice, Scottish Covid Bereaved, Covid-19 Bereaved Families for Justice Cymru, and the Trades Union Congress.

My Lady, I know you know that submissions have been received from three other bodies, core participants who don’t wish to make oral submissions this morning. They are the Cabinet Office, NHS National Services Scotland, and Public Health Scotland. All the written submissions, as everyone would expect, have been very carefully considered by you and the Inquiry team.

An enormous amount has been done since we last met, and the Inquiry has worked extremely hard to ensure that it and the core participants will be ready for the public hearing scheduled under this most demanding of timetables.

But in order to provide a proper foundation for the debate we must have today surrounding the issue of most concern to the core participants, which is whether the process by which Rule 9 statements and documents have been disclosed to them and whether they will enable them to participate meaningfully and properly in the Module 1 public hearing, I need first to set out some figures concerning disclosure.

My Lady, I’m just going to pause there, because my screen has gone blank. It’s showing up Mr Mitchell King’s Counsel, counsel for Scottish Ministers, but I’m not entirely sure why that is.

Lady Hallett: I’ve got a picture of you. I can hear you, Mr Keith, and I’ve got you under the heading of Claire Mitchell KC.

Mr Keith: Whoever it was, they have removed themselves from the screen in light of what I’ve just said, so I think the problem is resolved.

So, my Lady, the debate today, of course, is whether or not everybody can be ready in time for the hearing, and so to that end I need to set out some figures concerning the disclosure process.

Dealing firstly with the Rule 9s, including tranche 15, which was provided last Friday:

39 Rule 9 statements have been disclosed from 38 providers.

60 Rule 9 statements, or rather statements from 60 Rule 9 providers, are in final form and will go out in the next week or so. They are awaiting either final confirmation that no redactions or amendments are required, or they simply await to be put electronically on to the requisite system.

48 more draft statements simply await a signature. These include various parts of the Scottish and Welsh administrations and the Northern Irish Executive, and they will be received and then provided, also likely in the next two weeks.

Of the remainder of the total number of 212 Rule 9 requests made so far, responses are awaited from 38 statement providers, 13 draft statements are under consideration by the Inquiry, nine statement providers have either not replied or not engaged significantly, and six are clear that they will not be providing any responses at all.

So, shortly, the core participants will have Rule 9s from 145 providers. That is a very considerable amount of documentation.

On the exhibits front, including again tranche 15 from last Friday, some 5,200 documents have been disclosed to the core participants. Several hundred more will be going out as part of tranche 16, likely to be this Friday.

As far as what remains is concerned, some 3,300 documents are already with the material providers, or about to go, decisions on relevance having been made. They await simply a final indication from the material providers that there are no issues with the redactions, if any, which have been applied by the Inquiry, and that there is nothing preventing their release to the core participants. I expect that these 3,300 documents will be provided in tranches over the course of the next two to three weeks.

Around 6,700 documents are in the review process, either at first or second level review, awaiting a determination on relevance. Not all the documents will be relevant, of course. As you know, many thousands of documents from the documents which have already been processed have been weeded out and were weeded out because they were either not relevant or because they were duplicative.

The pace at which the Inquiry paralegals and lawyers in the review process have been able to assess documents for relevance has gone up dramatically since we last met due to considerable further resources being devoted to this exercise. In short, the number of full-time reviewers has been increased significantly, and so the rate of progress at first level review has tripled, and the rate of progress at the second level review has doubled.

This allows us to be confident that such of these documents that are determined to be relevant, historically around 40% to 50% of all the documents received – because, of course, the Inquiry requests documents that are potentially relevant but not all proved to be relevant – these can be sent to the material providers shortly for them to see the documents in their final state pre-disclosure before being sent out to the core participants. These documents will be received over the next month.

By then, in a month’s time, around 11 to 12,000 documents are likely to have been disclosed in total. This is a remarkable feat, given that the first tranche was only made to the core participants on 20 December.

It is difficult to be precise, but we assess that there are a considerable number of further documents which remain to be received from the material providers, to be numbered in the thousands. These documents, too, will need to be reviewed and the relevant documents amongst them disclosed.

My Lady, at first blush, that may appear alarming, but I must make three points.

First, the overall review process continues to speed up, and so the time required to review the documents for relevance will be shorter than for the documents that have already been reviewed.

Second, many of these later documents are from material providers who played a less central role in emergency preparedness, resilience and response, and therefore a smaller proportion of documents by comparison to the historical proportion are likely, when reviewed, to be found to be relevant, and they are also likely to require fewer individual redactions, which of course means the process can be generally speeded up.

Lastly, and most importantly in this particular regard, we obviously know what general areas are likely to be required to be raised with the first witnesses who are to give evidence in the public hearing. We know which witnesses are scheduled to be heard first, and we know what documents are therefore likely to relate to those witnesses and which need, therefore, to be provided to the core participants in good time.

The core participants’ responses to the evidence proposals for the first week’s witnesses are due to be sent back to the Inquiry in the week of Monday, 22 May, still four weeks’ hence. By that stage, the core participants will undoubtedly have received the majority of all the documents likely to be relevant to each witness.

Nevertheless, my Lady, the core participants obviously expressed concern that the timing of the provision of material will inhibit their ability to participate meaningfully. I hope that the figures which I have provided will reassure them that in this most demanding of timescales that the process can and will be made to function properly. But there are some further points that I think I need to make.

Firstly, Module 1 was always going to be the most demanding of processes. From the beginning, you made clear your determination that the Inquiry should commence its public hearings with the utmost dispatch. It is plainly in the public interest that relevant issues are scrutinised, that core witnesses and documentation are examined, and that the Inquiry makes its recommendations as quickly as possible so that lessons are learned in time. That is obvious. Moreover, it was the clear view of those whom you consulted as part of the terms of reference public consultation exercise. So we must commence on 13 June. It would be wrong to consider putting it back out of a prospective fear that we might not be ready. We must continue in confidence that we will make it work.

Secondly, the process was always going to be demanding. In common with most Inquiries, it is just not possible to secure and disclose every document in advance of the public hearing in a way such to allow core participants ample time within which to prepare for the hearing. Legal processes, least of all Inquiries, do not work like that. The reality is that a considerable amount of documentation will continue to be received by the core participants right up to the point at which the witnesses to which they could arguably relate will be giving evidence. It is unavoidable.

May I say we have on our side no doubt whatsoever that the core participants have the determination and drive and their legal teams the legal skills to make it work.

Third, there can be no doubt that by the time of the hearing, sufficient material will have been secured and disclosed and enough time afforded to the core participants, and I should say the Inquiry team, upon whom the greatest burden falls, to enable you to be satisfied that you can conduct full and fair inquiry in Module 1.

My Lady, with your enormous forensic experience, you know that no participant in any forensic process can ever identify, let alone prospectively, where the precise boundaries of that process’s reach should lie and what material needs to be gathered in order to ensure that the process discharges the obligations placed upon it.

In other words, it’s in the nature of these Inquiries that no one can ever say precisely what material, what documents, what policy material, what emails, what WhatsApps need to be assembled, let alone which witnesses have to be examined orally. The key is to identify with sufficient precision the general issues that are required to be ventilated and to seek and disclose material relevant to those issues. It is the ventilation, the airing of the issue or the issues that matters.

That is especially so in Module 1, because Module 1, concerned as it is with structural preparedness, is necessarily quite a high level and a somewhat ill-defined module. It is not an inquiry, that’s to say Module 1, into all aspects of the United Kingdom’s emergency planning, response and resilience, or the whole of the United Kingdom’s public health provision. It is an inquiry into such parts of the preparedness system, such parts of the overall structure as is necessary to answer the broad question: were we properly ready for the pandemic that ensued?

It follows that no Inquiry is ever likely to be rendered incomplete or inadequate by virtue of the absolute number of documents it discloses or the number of witnesses from whom it hears. It is impossible to call every witness who can give evidence of every aspect of every issue in every paragraph of the list of issues for Module 1. The Inquiry has neither the time nor the resources for this, and the core participants and the public could not and would not wish this to be so. Choices will have to be made and are being made, and those choices have been made with the great assistance of the core participants. As you know, they are due to respond to the Inquiry’s provisional list of witnesses by Thursday this week, and we will gratefully receive their comments, their help, and their assistance as to which witnesses we, or you, conclude must be called. I will return to this in a moment.

But the choices as to those witnesses can only be guided by the identification of the core issues: what was the state of preparedness? What lessons can be learned? What recommendations can be made? We are confident that we’ve identified the right issues to present through a selection of the most relevant witnesses. We just can’t call every possible witness.

So, my Lady, drawing the threads of those submissions together, I must emphasise that although the law doesn’t give core participants the sole right or ability to decide themselves what witnesses should be called to be examined, all the core participants, including Covid-19 Bereaved Families for Justice, are being given the opportunity to tell us what issues they think we should explore, what witnesses they think we should call, what should be put to them, and what documents should be scrutinised.

That is why we sent out proposed provisional list of issues, why we sent out the provisional list of witnesses, and why the core participants will be fully and properly engaged in the proposed evidence proposal process by which they tell us and inform our decision as to how we should examine witnesses, so they are given the chance to help decide what evidence should be produced.

My Lady, may I make one final point in this vein concerning this Inquiry? It concerns the general progress that you have made. Few countries have established formal legal Inquiries investigating the many aspects of the Covid pandemic, but of those that have, the UK Covid-19 Inquiry is the first to have reached public hearings. A number of countries, such as Sweden, Norway, Denmark, Australia and New Zealand, have instead instituted independent commissions led by experts in, for instance, epidemiology, public health, economics and public policy. Some of those commissions have indeed concluded, but they simply did not have anything like the same scope or depth as this Inquiry, and nor did they amount to full legal forensic inquiries.

My Lady, with, I’m afraid – and I apologise, that rather lengthy introduction – can I then turn to some of the specific points raised in the very helpful written submissions received from the core participants.

A number of general matters have been raised, to which we have naturally given the most careful consideration, and in relation to which I have no doubt whatsoever that you will give your own consideration when deciding what needs to be done in response. We’re very grateful to the core participants, though, for their contribution and for raising these issues.

My Lady, the first issue concerns your ruling in Module 2 concerning the procurement of expert evidence to deal with the issue of structural racism.

In your 9 March ruling following the 1 March preliminary hearing in Module 2, you ruled at paragraph 32 that Module 2 should obtain expert evidence from a suitably qualified expert or experts on the nature and degree of pre-pandemic structural racism.

You said that such an expert or experts would assist you to understand the issue and would provide a clearer evidential foundation upon which the specific issues of Module 2 could be explored and developed, but you also determined that you would consider in due course and keep under review the extent to which such evidence would be needed in other modules.

We are very grateful to Covid-19 Bereaved Families for Justice UK and the Northern Ireland Bereaved Families for Justice group for bringing this back to your attention.

The purpose of your determination was not, of course, to enable the Inquiry to consider whether government decision-making, the subject of Module 2, was knowingly infected by racism, but to better understand the reality of structural racism and to set out the proper context against which that decision-making falls to be considered.

In other words, to what extent the decisions that are the subject of Module 2 properly took into account an understanding of pre-existing structural racism. In order to be able to address the decisions in that context, it’s obviously important to understand what is structural racism, what its impact is, what its effects are, and how and why it matters so very much.

There is an argument that a proper analysis of the adequacy of the UK’s general preparedness arrangements, which are the subject of course of Module 1, must similarly take into account the possible impact of pre-existing structural racism. But I do not believe there is any need to specifically instruct the experts who have been commissioned in Module 2 to consider themselves what the impact on Module 1 preparedness as a result of structural racism might have been.

We have taken the alternative course, my Lady, of asking Sir Michael Marmot, Professor Bambra – two of the existing experts, of course, from Module 1 – to address the extent to which structural racism was a consideration in pandemic planning, and we await their response.

My Lady, in my respectful submission, that is the correct and proper course, particularly bearing in mind the remaining time between now and the Module 1 public hearing, to raise the important point or to address the important point raised by those two core participant groups.

The second issue concerns points made particularly by Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice group, whether or not – or the extent to which, rather, the final form of the issues which the Inquiry has promulgated by way of publishing the list of issues, took into account their suggestions. They’ve expressed concern that some, but not all, of the points that they raised didn’t appear to have led to amendments in the proposed list, that they don’t find reflection in the final version of the list, and they don’t know why.

My Lady, seven core participants responded with their thoughts on the provisional list of issues, one body having been given a week’s extension, and all the points were very carefully considered by the Module 1 lead solicitors and the entire barrister team, and a number of changes were made. The matter was then brought to your attention, of course, as the arbiter as to what matters your Inquiry should look at.

The position is that, as I say, a number of changes were made, but the remainder of the points – we found no reflection in the final form – were not required to be there, either because the point being made or the issue sought to be included was already within the intended scope of the list, or because the matters raised were not properly falling within Module 1, or, in many cases, the points being made were in fact more of an evidential matter, thereby being some things that should more properly fall to be put to witnesses as a matter of evidence.

So to give you an example, at paragraph 18 of the helpful submissions provided by the Trades Union Congress, a point is made concerning the interface between public health services and social care. Although the resilience of the social care sector is not an issue, quite plainly within Module 1, the issue of whether recommendations from Operation Cygnus concerning the pressure that would be placed on the social care system if the NHS started triaging patients and whether that process worked is something that can be raised with relevant witnesses in Module 1. It is something that is just not required to be identified as a headline issue. It is a matter that can properly be put and will be put to the proper witnesses.

So the general point needs to be made: many of the points that were advanced were reflections, understandably, of evidential matters that you will be calling evidence upon.

The structural problems and the overarching and the wider issues of the resilience of the social care sector can also be, of course, raised with relevant witnesses in a later module, as can be the point made also by the Trades Union Congress that the social care workforce felt abandoned by the government. Those are issues which more properly fall to be addressed in later modules.

The third area concerns whether or not preparedness in hospitals and care homes falls within Module 1. This is an issue which is raised by one particular core participant. My Lady, in our submission, and of course again it’s a matter for you, the answer is: no. Whilst Module 1 of course will look at high level planning, the manner in which in general terms the UK Government and the devolved administrations declared how hospitals and care homes should prepare for civil emergencies and pandemics, the more detailed examination of preparedness in hospitals and care homes, especially at an operational level, must be for the healthcare and care sector modules. And to the extent that when the highest levels of the government, UK Government and devolved administrations, were making decisions in the early days of the pandemic that affected hospitals and care homes, obviously the nature and adequacy of that decision-making will find an additional reflection in Module 2. But they are not Module 1 issues.

The fourth point concerns Mr Weatherby’s submissions that the Rule 9 requests that the Inquiry has made be disclosed to the core participants. He and Mr Lavery King’s Counsel have reiterated their requests, the Rule 9 requests made to the material providers, to have been disclosed.

My Lady, in the first preliminary hearing in Module 1, you ruled that the Rule 9 requests made by the Inquiry should not be disclosed, and you adopted the same approach in Module 2. But, of course, you stated that you would keep the matter under review. We would invite you not to order disclosure of the Rule 9s.

I’m just going to pause there again because certainly my screen has gone blank. It’s quite possible that a core participant is not on mute and, therefore, by making a noise has caused the camera to change to them.

Lady Hallett: I can see you, Mr Keith, and can hear you.

Mr Keith: I’m told it’s working again.

So, in my submission, it’s not necessary to order disclosure of the Rule 9 requests. The two core participant groups, my Lady, assert that they need the Rule 9 requests in order to be able to assess the rate of progress at which the Inquiry is making disclosure. We respectfully suggest that there is no need for the disclosure of the Rule 9s. The core participants know, by very fact of the amounts of material being disclosed to them, from the monthly updates from the Solicitor to the Inquiry, as well as from the details of what I provided a few moments ago, what that rate of progress is.

But more fundamentally, my Lady, now that the core participants are receiving the fruit of that progress, they’re now receiving the statements and the documentary exhibits which the Rule 9 requests seek, there is simply no need for them to see the underpinning, the underlying Rule 9 requests themselves.

Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice also point out that they’ve received some exhibits without the accompanying statements. The reason for this, my Lady, will have been that, for whatever reason, the statements were not ready to be disclosed but their accompanying exhibits were, and so rather than holding up the disclosure of the exhibits, the Inquiry would have held back the statements until the disclosure process was complete, so the exhibits were provided unaccompanied, as it were. I believe that the statements relating to those exhibits either have been or will very shortly be disclosed.

My Lady, the fifth point concerns the material providers and some of the ways in which the Inquiry has encountered difficulties in receiving documents and information from them.

My Lady, almost all the core participants have responded, quite understandably and with various degrees of concern, to what we said in the note from the Solicitor to the Inquiry and also in the Counsel to the Inquiry note about the difficulties encountered with a small number of material providers. The problem that we have encountered is two-fold.

First, a number of the government corporate statements that we were provided with, which set out explanations as to how those departments or bodies worked and what they did, were arguably insufficiently rigorous in identifying ways in which those bodies or departments failed to anticipate, plan for the pandemic, or were insufficiently rigorous in identifying for our benefit further lines of inquiry.

Where we perceive to be this case, and in fairness, I must say, that the Rule 9 requests have generally been extremely demanding, in terms of what was sought, the length, and in terms of the time allowed, we have gone back and sought further information in an even more direct and pointed way.

The note from the Solicitor to the Inquiry sets out the bodies and departments that have required this sort of further Rule 9 request or clarification.

So, my Lady, the general position is that whatever deficiencies were in the initial Rule 9 responses have been rectified, as you would expect them to be so, by virtue of the Inquiry responding to the material providers.

Covid-19 Bereaved Families for Justice Cymru asked a particular question as to whether or not the Welsh Government was such an offender. The position in relation to the Welsh Government was that in its draft response, although the response was full and complete, that there was a notable absence of supporting exhibits in relation to some areas covered by the Rule 9 statement. This was rectified after we raised the matter with them, and we demanded and we received assurances, and we’ve received the material, of course, to the effect that it wasn’t enough just to make statements of fact in statements; it was important that whatever assertions the statements had made were properly supported and backed up by exhibits.

My Lady, I should also say there has been no shortage of endeavour or good faith on the part of all the Rule 9 recipients, even if they’ve not initially responded in the way that we would have wished. Most of them have dedicated very considerable legal, financial and administrative resources to responding quickly and properly to our complex and lengthy requests. Some of them have had to deal with multiple Rule 9 requests not just from this module but from Modules 2 and 3 as well.

So, my Lady, there is no, now, real issue in relation to the provision of material by material providers.

The second aspect of this issue is as follows: three Rule 9 recipients in particular were insufficiently rigorous in their supply of potentially relevant documents. In short, they provided too much. They provided large numbers of what turned out to be irrelevant or wrongly directed documentation.

My Lady, that possibly was borne out of an overeagerness or just a failure, administratively, to think more carefully about what they were doing. In one case, the material that we were provided with failed to specify whether it was related to Module 1, 2 or 3, although there was no doubt, as it subsequently turned out, what the Module 1 material was.

In another case, one material provider provided over, I think, 13,000 documents in a three-week period. My Lady, as I say, such responses were not borne out of malice or evasion but were simply a failure to properly appreciate what the nature of the obligation was on them, and to spend perhaps insufficient time thinking about what it is that we needed from them.

The Module 1 Inquiry solicitor team, in the form of Messrs Carlyon and Davies and Ms Bailey, have met, in fact, many of the material providers and have been astute to keep them on the straight and narrow. They have sent multiple letters concerning prospective deadlines, and multiple letters have gone back making even more clear what documents we expect to receive and making further inquiries. They, my Lady, have been rightly critical of any departure from the material expected from the material providers.

In the case of the three departments or bodies to whom I made reference, we have met with all of them, and we have had constructive conversations as to how disclosure must be managed, and those processes are now firmly back on track.

So, my Lady, coming to the heart of the submission made by Mr Weatherby, there is, in our submission, no need for position statements from the material providers. Such statements would simply replicate in different form and to no purpose whatsoever the information that is already contained in the responses and in the disclosed documentation. Imposing on the material providers the obligation to provide position statements as to where their documentation takes them would also consume limited time and resources that are, frankly, more importantly directed towards complying with the remaining disclosure requests. So we would invite you not to take up that suggestion.

Point 6 concerns the general issue of the nature or level of disclosure from the devolved administrations. A point has been raised as to how far we have been able to get in terms of getting disclosure from devolved administrations. A very significant number, as you would expect, of Rule 9s have been issued towards the devolved administrations, but it just so happened that many of those Rule 9s happened to be issued somewhat later in the process of seeking disclosure. So the disclosure from those Rule 9s falls to be made correspondingly a little later in the process. But I can say that the core participants are about to receive very significant disclosure imminently from the devolved administrations.

The joint submissions from Covid-19 Bereaved Families for Justice UK and Northern Ireland Covid-19 Bereaved Families for Justice raise, at point 7, an important point concerning the pre-witness evidence proposals. So, my Lady, those two groups have expressed concern about our proposal that there be an additional post-evidence proposal but in advance of the witness giving evidence, by which the core participants can raise, one further time, issues that they feel must be put to witnesses by Counsel to the Inquiry but which have not found favour as a result of their contribution to the witness evidence proposals. In other words, this additional process by which, if they fail to persuade us of matters which must be put into the witness evidence proposals, they have an additional route by which they can repeat their requests, they can seek to change our minds as to what needs to be put, and of course contribute in a second way to the process of deciding what issues need to be raised with the witnesses.

My Lady, in response to what’s said in the written submissions, can I be clear: it was not meant to be an additional administrative burden, as has been described. It was intended to afford an additional route by which the core participants could metaphorically bend Counsel to the Inquiry’s collective ear. It may also assist if I confirm that the process is optional. If the core participants feel, as part of the witness evidence proposal process, that Counsel to the Inquiry have taken into account properly, as they see it, the points that they’ve raised, and that it is clear that the issues that they want us to put to witnesses will be therefore put to witnesses, then they needn’t, of course, return to the fray and seek to re-persuade us of the merits of their arguments.

So this process is optional, it wasn’t meant to be prescriptive, and the proposed template was suggested simply to ensure that there is a consistency of approach in the points that are made to us.

There is, contrary also to a further submission that’s made, no question of Counsel to the Inquiry reading out robotically the written questions that may be provided as part of this secondary route.

The process, which is not required in the rules, was offered simply so that core participants could better inform us of their views. But the submissions, my Lady, are advanced in such a way as to appear to suggest that what is really sought by the two groups is a general indication from you that the Inquiry permits them, and you permit them, to be allowed to ask questions of each and every witness under Rule 10(4) and that you should give that indication in advance of the witnesses giving evidence.

We would invite you not to give any such indication. The law, that is to say Rule 10(4) of the Inquiries Rules, does not of course give core participants the right to ask questions of witnesses; your permission must first be sought. And I need to make plain: that is the law; it is not simply a position adopted by your Inquiry.

Such applications for permission to examine or allow the core participants themselves to examine witnesses are obviously more sensibly made once the witness has given evidence and has been examined by Counsel to the Inquiry, because it is only at that point that it will become clear what further areas may arguably need to be examined, what areas the core participants feel have not been properly put, and whether or not they feel that Counsel to the Inquiry has not discharged the obligation of sufficiently scrutinising the evidence of the witness.

In other words, each application must be considered on its own merits and in light of what the witness has actually said. So, logically, my Lady, that precludes the giving of an across the board permission in advance of the evidence even being heard.

What can be done, however, of course, is that where there are particular issues for particular witnesses, where there is a clear argument, probably as a result the overriding importance of that issue to a particular core participant, that the core participants should be able to ask questions themselves, as I say, in reflection of the vital nature of the particular point, then we may indicate in advance of the witness giving evidence that that is likely to be something that will find favour with you. But we cannot gainsay your decision, and we cannot gainsay in particular your decision prospectively. You must have the ability to decide in respect of each witness whether or not such permission should be given under Rule 10(4).

So, my Lady, those are our submissions in relation to that point.

Point 8. The Bereaved Families for Justice Group UK have written to the Inquiry enclosing a list of 21 bereaved family members whom the group believes should be considered by the Inquiry and called to give evidence in Module 1. My Lady, as you know, the schedule in the letter summarises the evidence that the group believes that those family members can give. The summaries describe in unambiguous and distressing terms how their loved ones suffered and died, and in most cases, their opinions – that is to say the opinions of the family members – as to why they believe that the hospitals and care homes, the emergency services, the procedures, the protocols and equipment, or the PPE and testing processes, among many other matters, were woefully unprepared or inadequate.

The letter states its authors’ belief that such evidence is relevant and admissible in line with what it says is, and what obviously the authors of the letter believe, is the Inquiry’s stated approach to call family members in all modules.

My Lady, you have already ruled on whether such evidence can be called. At paragraph 40 of your ruling on 16 October, following the first preliminary hearing in this module, you said in line with the terms of reference which stipulate that the circumstances of individual deaths cannot be examined, that:

“Evidence of circumstances of death should only be admitted in this and later modules if it is relevant to possible systemic failings.”

My Lady, in our submission, but again as with all these matters, it is entirely a matter for you. This evidence of single deaths, however compelling and terrible – and it is – is unlikely to be able to demonstrate that there were systemic failings as opposed to there having been a failure to prevent that particular death. You made clear that you needed no persuading that bereaved family members may well have relevant evidence to give on possible systemic failings, and you will recall from the argument, you gave the example of widespread use of Do Not Resuscitate notices. If so, such evidence can be called in the healthcare module to give evidence, and to give important evidence to you, of the circumstances of those loved ones’ deaths, because the evidence of itself will say something about, in that particular case, the widespread use of Do Not Resuscitate notices, and of course illuminates the approach to such notices that was taken by hospitals.

But such evidence of how loved ones died, even when coupled with the absolutely understandable and hugely moving views of the makers of the statements as to why they died and why they believe that the deaths were contributed to by failings, doesn’t go to Module 1. Module 1 is concerned primarily with the period of time from June 2019 to 21 January 2020 and is examining, and I paraphrase of course, in general terms, the UK’s structural preparedness and planning.

Module 1 obviously includes issues as to whether or not the risk of a coronavirus pandemic was properly identified and planned for, and whether the United Kingdom was ready for such an eventuality. But the module is looking at the UK’s preparedness for whole system civil emergencies. And whilst that includes resourcing, the system of risk management, pandemic readiness, it is not concerned with what the impact was of the pandemic, in reality, once it had struck, or with operational preparedness.

So, my Lady, the Inquiry team proposes – but of course, again, I emphasise it’s a matter for you – not calling significant numbers of such persons in Module 1 for the principal reasons that I have set out. But instead we propose to call a single witness from each of the bereaved groups at the end of the Module 1 public hearing to ensure that we and the public are all powerfully reminded of the pandemic’s destructive impact and the terrible losses that were suffered. As the Inquiry moves from examining, in a general sense, the state of preparedness to examining, in the next module, the arrival of the pandemic and the United Kingdom government and the devolved administrations’ responses.

Let me also make clear that of course it remains open to you at any time and throughout the Inquiry to call evidence from bereaved families in relation to later modules, because those modules, as I have endeavoured to explain, are more directly concerned with impact.

In short, bluntly, Module 1 is not concerned with impact; it is concerned with the anterior state of affairs, the structural examination of our countries, in advance of the pandemic striking.

My Lady, I wish also to add – and I’ll come back to this later in my submissions – each of the public hearings will begin with a reminder of the devastating impacts of the pandemic, because you have directed the Inquiry to prepare films bringing the voices and faces of those who were affected so terribly directly into the hearing room. I’ll come back to that later.

So, my Lady, those are our submissions in relation to this important issue concerning whether or not you should call a significant number of witnesses in relation to individual deaths from bereaved groups, but in particular the two groups who made those submissions and the one group that sent the letter.

Point 9, my Lady, concerns a point raised by the Scottish Covid Bereaved. The Scottish Covid Bereaved raises a very good point which is whether or not, if relevant further information comes to light after the witness has given evidence, you would recall the witness. My Lady, in our submission, the position that you are likely to take and should take is that you should recognise and confirm that you do have of course a power to recall witnesses, because you have a very wide discretion to call any witness at any time on any topic. But I imagine that you would consider exercising that power, of course made on application, only if the circumstances warranted it. It would obviously be invidious if multiple numbers of witnesses were recalled, because there simply wouldn’t be the time allowed in the process for such evidence to be reheard.

My Lady, then turning to, finally, some specific forensic or evidential points which have been made, point 10: the Covid-19 Bereaved Families for Justice Group and the Northern Ireland Covid-19 Bereaved Families for Justice Group ask to what extent Northern Ireland has been covered in our existing expert evidence on preparedness.

My Lady, the issue of preparedness of Northern Ireland has naturally been extensively addressed in the Rule 9s we’ve sent out. In no particular order, we’ve sent reminders to Disability Action Northern Ireland, the Northern Ireland Chief Medical Officer, the Northern Ireland Department for Finance, the Northern Ireland Department of Health, the Executive Office, the NIEPGs, the Northern Ireland Emergency Preparedness Groups, the Northern Ireland Council for Voluntary Action, the NILGA, that’s to say the Local Government Association, and the Public Health Agency. Follow-up letters have been sent to the Executive Office, the Department of Health, Department of Finance, the Department of Economy, DAERA, that’s the Department of Agriculture, Environment and Rural Affairs, the CMO and the CSA, the Chief Scientific Adviser, and the Public Health Agency.

I do acknowledge that Northern Ireland has not been extensively covered in the report from Bruce Mann and David Alexander to the same extent as the United Kingdom and the other devolved administrations. But that said, there are, my Lady, multiple references in their report to Northern Ireland, and I shan’t read them all out, but they cover such matters as a high level overview as to how civil contingencies are devolved in Northern Ireland. They deal with the Northern Ireland Executive response to pandemic planning. They deal with the ConOps, the Concept of Operations for Northern Ireland, the contingency structures, the Department of Justice’s approach to obtaining information about civil contingency matters, the recommendations on imposing legal duties, and they are able to advance recommendations for your consideration in relation to Northern Ireland in just the same way as they do in relation to the other administrations and to the UK Government.

My Lady, nevertheless, we have sent Messrs Mann and Alexander, the corporate statement which the Northern Ireland Covid-19 Bereaved Families for Justice Group kindly provided, as well as their submissions from the last preliminary hearing and this one, in order to get from them their thoughts, and so we await their response to that.

Point 11. Covid-19 Bereaved Families for Justice Cymru asks whether former senior Cabinet members have been Rule 9ed in Module 1. My Lady, we’ve sent Rule 9s to a significant number of Welsh politicians, including Mark Drakeford, of course the First Minister for Wales, Carwyn Jones, the former First Minister, Vaughan Gething, the Minister for Health and Social Services until 2021, Rebecca Evans, the current Welsh Minister of Finance, Ken Skates, the former Welsh Minister of The Economy.

Twelfthly, Covid-19 Bereaved Families for Justice Cymru seek clarification as to the extent to which the expert evidence generally covers the devolved administrations, but in particular Wales, and in a similar vein, my Lady, Public Health Scotland have asked about the extent of expert evidence covering public health and Scotland. I’ve already addressed the particular position of Northern Ireland in relation to the earlier submissions from Covid-19 Bereaved Families for Justice.

My Lady, in a general sense, the expert evidence does properly cover all the devolved administrations, and I addressed you on that issue, in fact, at the last preliminary hearing. But not all the expert evidence can cover the devolved administrations to the same degree. Much depends of course on the issue and of course on the nature of the expert’s subject matter that is the subject of the reports.

So, for example, the report from Professor Whitworth and Dr Hammer in relation to biosecurity, biosecurity and biosecurity issues generally concern the United Kingdom as a whole, and therefore it’s difficult to see how extensive devolved administrations’ specific angles might be culled from the material and from the issue of biosecurity for separate specific consideration.

Bruce Mann and David Alexander’s report, as I’ve said, provides extensive overviews of the devolved administrations structures and some consideration of their distinctive features, and their generic umbrella recommendations apply to United Kingdom Government as well as the devolved administrations.

Sir Michael Marmot and Professor Clare Bambra have been provided, as I said, with additional specific questions and comments from the core participants, including those, as I’ve said, from the Northern Ireland Bereaved Families for Justice Group, but the reality is health inequalities, to a very large extent, are common between the nations and are therefore dealt with by them in a similar manner.

Finally, Dr Claas Kirchelle, his draft report has not yet been received, but Covid-19 Bereaved Families for Justice and the Northern Ireland Covid-19 Bereaved Families for Justice Groups have expressed their satisfaction that his instructions, in relation to the history of public health bodies and pandemic preparedness, are adequate.

My Lady, I must say, though, in relation to Dr Kirchelle, he is an acknowledged expert on the history of public health in England and Wales, and he doesn’t claim and therefore he can’t advance an identical degree of expertise in relation to Scotland and Northern Ireland. But he has assured us that he will be able to answer the questions put to him in relation to all the DAs by virtue of drawing, to a considerable extent, on all the published material with which he is, of course, very familiar.

My Lady, in a general sense, it may be worth noting that it’s unlikely that there could ever be parity in terms of the amount of material, expert report and witnesses in respect of the devolved administrations by comparison to the United Kingdom. Systems were necessarily different, and in some cases they are smaller and less extensive.

So, for example, it’s clear from the material that we’ve received from the Scottish Rule 9 recipients that there is no general Chief Scientific Adviser type figure in Scotland who is properly involved in pandemic planning and preparedness. There is only, or was only, the Chief Medical Officer at the time, Catherine Calderwood. So it’s futile to look to see whether or not the CSA structures, which can be seen at the UK level, are replicated in the devolved administrations, in that case in Scotland.

My Lady, finally, in relation to the last forensic issue, point 13, the Trades Union Congress asks for a list of the bodies that the Inquiry will be examining in Module 1 and also seeks further information on Dr Kirchelle.

The short answer is that the majority of the bodies to which the TUC refers are referred to, to a greater or lesser extent than the Rule 9s, and so will be the subject of examination, albeit to differing levels, in the course of Module 1. Public Health England and its counterparts, it’s obviously an important area. In relation to the Health and Safety Executive, we did in deference to the TUC’s urging send a Rule 9 to the HSE, but it may prove to be the case that they’re not particularly within scope.

Local authorities have not received Rule 9s directly, but the position of local authorities can just as efficiently be addressed by way of the Rule 9s that we have sent to the overarching bodies, that’s to say the Local Government Association, the Welsh Local Government Association, the Convention of Scottish Local Authorities, the Association of Directors of Public Health, the Northern Ireland Local Government Association, and the National Police Chiefs’ Council.

Similarly, there was simply no point, and it would have been a particular drain on resources to send Rule 9s to each local resilience forum when we had the option, which we took, of making enquiries about local resilience forums via the Local Government Association, the Welsh Local Government Association, the Convention of Scottish Local Authorities, and the emergency preparedness groups, and so on.

As for Dr Kirchelle, the Inquiry team in fact assembled some material when it was considering recommending to you that he be instructed. That material, as well as his online CV, can be made available on request.

So, my Lady, that brings me to the end of our submissions in relation to all the points raised in the various written submissions, bar one: Every Story Matters. Would you wish me to address you on that now, or would you wish to give the stenographer a …

Lady Hallett: If you could complete your submissions, Mr Keith, and then we’ll take a break.

Mr Keith: So turning to Every Story Matters, my Lady, you’re aware that this isn’t of course part of Module 1, but in deference to the fact that Mr Weatherby and Mr Lavery say in their submissions that it has provoked – and I quote their words – on behalf of those whom they represent more anxiety and questions than any other topic, I must address this issue too.

My Lady, the first point that they make is that there is still no single place, whether a document or an online note, where the bereaved families can find out who will be involved, how it is intended to operate, what the timescales are, how the trauma-informed approach will be ensured, how the process will be accessed, and so on.

In your 17 February ruling, following the second preliminary hearing in Module 1, you directed in fact that the Inquiry team consider if there are ways in which we could better improve, or improve our communication, in terms of setting out this information.

I must say that a very significant amount of information has been made available through emails and letters, meetings with the leads for Covid-19 Bereaved Families for Justice UK and other groups.

The Inquiry has met with over 100 organisations, in fact, to engage with them on the design of Every Story Matters, and that has naturally included individuals who experienced bereavement during the pandemic, as well as representatives from healthcare, trade unions, equalities, children’s groups, young persons’ organisations, and so on, in all four nations of the United Kingdom.

Most importantly, there were two webinars held in March 2023. My Lady, these were attended by Covid-19 Bereaved Families for Justice, Covid-19 Bereaved Families for Justice Cymru, Scottish Covid Bereaved, Long Covid groups, and 17 other organisations. They raised a number of issues and concerns in the course of the webinars, and these were addressed by the Inquiry team who were present.

A transcript, certainly one of the webinars, detailing everything that was raised and the responses from the Inquiry is available online and was also sent to the lawyers for some of the campaign groups. Information about the webinar was also made available through the Solicitor to the Inquiry update, and there is information about Every Story Matters in those updates too.

But, my Lady, I am nevertheless very sorry that some of the core participants, according to their legal representatives, believe that there is still an absence of a clear and definitive guide to the Every Story Matters process.

My Lady, you have directed that all the information relating to Every Story Matters be brought together into a single document and that that be published straightaway. That letter will be published later this week.

My Lady, Covid-19 Bereaved Families for Justice UK and the Northern Irish group also asked for details of how the targeted research part of Every Story Matters will work. My Lady, as you know, this very substantial project comprises a number of parts. All of them are designed to allow as many ways as possible for members of the public to tell their stories. The targeted research is part of this.

Standing back, and addressing some of the parts of the Inquiry, a pilot online form has been available since November last year, and over 5,500 people have already shared their stories with the Inquiry through that online form.

However, a new and improved form will launch in May. It incorporates a number of changes which have been made following feedback from organisations and individuals, including from the bereaved groups, who took part, and we’re very grateful to them in user testing.

So there will be a range of accessible versions of the form, in multiple languages, and a phone line will be made available to offer help in completing the form. It will also be possible to complete the form in paper format and to send it by freepost to the Inquiry. There will be a public information campaign to encourage participation in Every Story Matters, and that goes live in June. It will include radio advertising, print advertising, printed and digital billboards, adverts on selected websites and on social media, and the utilisation of links for the multitude of specialist groups.

Turning to targeted research, this has already been explained in the webinars and the meetings with the campaign team groups – well, the campaigning group teams. It is a process of approaching people, designed to ensure that the Inquiry hears from those from whom we particularly need to hear, the seldom heard, the vulnerable, or difficult to reach communities. And how it works, and is intended to work, is that the Inquiry has drawn up, and will continue to draw up, categories of persons defined by particular demographics, experiences or impacts, or by reference to why their stories are of particular assistance to the Inquiry, whether it be because they suffered in hospital or in care homes, or because they suffered bereavement or other loss or harm, through vaccines, the application of PPE, as a result of failings in Test and Trace, and so on.

Those experiences, the impact on individuals of the pandemic and/or bereavement and of treatment in hospital and so on is of vital concern to the Inquiry and to Every Story Matters. But they must be chosen according to some sensible methodology because we must have, at the same time, a representative mix across all regions and nations of the United Kingdom, mixes and a proper representative mix across gender, age, ethnicity and other demographic factors.

So that, my Lady, is all that the phrase “key lines of inquiry”, a phrase that was used, in fact, in the webinar, means. Obviously Inquiry staff, including the lawyers, must have a hand, and have a hand already, in drawing up the particular categories.

154 interviews have already taken place with members of the public who have stories to tell but which are particularly relevant to identifying these key lines of inquiry. The Inquiry anticipates that, as part of this targeted research part of Every Story Matters, hundreds more interviews will take place this summer and thereafter.

The interviews are being carried out in accordance with specialist advice given to the Inquiry by experienced community researchers who are specifically trained in the compassionate use of information and who apply what is known as a trauma-informed approach.

So, my Lady, there is a very extensive process already in place which will continue to be developed, and as part of that process, there is a targeted research which ensures that the Inquiry reaches out to the public and is not just reliant upon their response by way of online or paper returns.

A final aspect of Every Story Matters that I want to mention is the introduction of community events or community listening events. So the Inquiry learned from consultation last year the value of hearing from people in the community and in person. Community events will be set up – these will follow later in the autumn – and what they are intended to provide is an opportunity by which members of the community, particularly those affected by the pandemic, bereaved, ethnic minority groups, young persons, people in care homes, the clinically vulnerable, long Covid sufferers, can engage with the Inquiry in a community aspect as part of a listening event.

Again, a great deal of care has been taken to ensure that as many as people in a representative way can be approached and can be encouraged to take place in this process as possible.

To do that, my Lady, we need expertise that simply doesn’t exist within the Inquiry team. So as part of the pilot process which has been in place up to now, of course companies were approached and sought to be engaged and contracted to help us with our work. The pilot stage being about to end, we hope to sign new contracts in the next couple of months for the remainder of the Every Story Matters process. Those new contracts, which I emphasise are yet to be awarded, will replace the current contracts with Ipsos and M&C Saatchi – you will recall that M&C Saatchi is the entity which subcontracted elements of its work to 23red. All those contracts end on 31 May.

Finally, in relation to Every Story Matters, I need to say that, my Lady, you have directed the setting up of an ethical advisory group which is intended to provide an ethical review of the research, design and the approach, all the matters to which I’ve made reference, the key lines of inquiry, the need to find a proper representative mix of the entire nation, and it will examine and scrutinise the approach taken by the Inquiry to Every Story Matters. That group will be chaired by Professor David Archard of Queen’s University Belfast.

Commemoration, and this is the last issue, my Lady. We have been working with the core participants and organisations to make sure that we recognise and acknowledge the human impact of the pandemic as part of your proceedings. One of the ways in which we have been working with organisations to represent the human impact of the pandemic is by way of the commemorative art installation in the form of a tapestry. So, my Lady, as I’ve said before, and as you have noted, each panel in the tapestry will be designed by a different artist working in collaboration with a particular group or community of individuals.

The tapestry panels will be unveiled at the hearing centre in June in time for the first public hearing, and the thread and the linen making up the tapestry will be sourced from all four nations in the United Kingdom. Digital access to it will be provided later in the summer to enable those not present at the hearings to both view and read the stories behind the panels.

Following invitations to the bereaved families and other core participants in February, as I mentioned earlier, filming has also begun on the human impact films to be played at the start of all the public hearings, including Module 1. So a different film will be played at the start of each module, and it will feature people talking about their experiences and the emotional and other terrible impacts that the pandemic has had on them. Those filming sessions are taking place across the United Kingdom.

My Lady, your Inquiry reached out to and arranged for meetings to be held with the leads of the bereaved groups, including Bereaved Families for Justice UK, to ask for their support in finding people who would either be willing to be filmed for the videos, or actually to speak to and help the artists to shape the tapestry. The Inquiry will also be writing to all core participants with the dates of further filming days in May in London and in the Midlands, and we would simply ask interested core participants to submit volunteer interviewees and to email the Inquiry’s engagement email address which will be provided with the filming dates. My Lady, we need their help, and we ask them to help us to deliver the Inquiry that you have set us upon.

So, my Lady, those are all the submissions that I make in relation to actually the many matters raised by the core participants. And I repeat, we’re very grateful to them all for the way in which they’ve put those points, all of which are thought provoking and none of them unimportant, but I hope, my Lady, that that answers the points that they have made.

Lady Hallett: Thank you very much, Mr Keith. We shall break now. I shall return at midday.

(11.43 am)

(A short break)

(12.00 )

Lady Hallett: We may be just slightly early. Mr Weatherby, I can see you. You’re there and ready to go.