4. Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell

Ms Mitchell: My Lady, I’m obliged.

The Scottish Covid Bereaved wish to address Rule 9s, disclosure and delay, and make some brief comments on matters arising this morning.

We are obliged to Counsel to the Inquiry and the team for providing us with an update on the Rule 9 procedure and how that is progressing.

As perhaps properly anticipated by Mr Keith KC, it won’t come as a surprise to the Inquiry to understand that the Scottish Covid Bereaved are concerned that a considerable number of the statements contained insufficient detail and, as was stated, posed more questions than they answered, particularly as some of these came from central government departments.

Further, the Scottish Covid Bereaved are worried to hear that the Inquiry’s considered that it should have been clear to those organisations that the statements simply would not provide the Chair with the detail that she will require in order to consider responsibility for and involvement in the matters set out in the Inquiry’s provisional outline of scope.

If it should have been clear to those organisations that the information provided would be insufficient, this suggests a lack of co-operation with the work of the Inquiry at the most fundamental level of provision of specific information requested.

We are grateful in respect of the transparent way in which Counsel to the Inquiry and the Chair is dealing with this matter, and doubtless those in receipt of Rule 9s, which have been responded to in a less than satisfactory way, will now require to do so in the timescale set out by the Chair.

The way in which the Rule 9 response has been dealt with, however, does not provide the Scottish Covid Bereaved with confidence that, where appropriate, the same parties understand and are properly implementing their disclosure duties in respect of relevant documents.

Confidence in this process is further undermined if, as it appears, the Department for Levelling Up, Housing and Communities has disclosed a considerable proportion of the material which is not in fact responsive to a Rule 9.

The material disclosed apparently is sometimes far too granular in nature. The question asked must be: if regard is not being had properly to the Rule 9 and the documents provided not responsive to it, has the relevant process of assessment been carried out properly at all? Might yet there be a considerable amount of material which has not been provided that is in fact responsive to that request?

The Scottish Covid Bereaved are also concerned to understand that the Office of the Chief Medical Officer has not properly undertaken the request to inform relevant to Module 1 and has rather opted to provide everything. Again, confidence in those receiving Rule 9s are properly understanding and implementing their task, and supplying the correct documents that are sought by the Inquiry is undermined when, as in this case, there appears to be a wholesale departure from the proper application of the disclosure process.

This morning, we understand that these are not the only bodies which have not carried out their task properly. Senior Counsel to the Inquiry has stated it may not be malice but rather a failure to understand what is being asked for, and indeed that is a statement with which we would as yet not demur. However, the outcome is the same, that the proper test is not being carried out and, as a result, the relevant documents are not being supplied.

Senior Counsel to the Inquiry has set out the work that is being done and, clearly, strenuous efforts are being made to ensure we are ready for the hearings, but this work is undermined if the job carried out by those scrutinising their own documents and deciding what falls within it is not carried out properly.

Now, the following proposition I make may be something that’s already done. Indeed, I would be glad to hear that if it was. But if not, going forward, might I suggest that those being asked for disclosure are required to complete a schedule of disclosure which indicates all the documents that are being considered and then sets out separately what documents are and are not being provided to the Inquiry, with a brief description thereof. This would allow the Inquiry to ensure, firstly, that the proper test is being applied, as the haver will have to, as it were, show their thinking, and, secondly, to allow any documents which would appear to the Inquiry to be relevant which have not been included to be called for.

This would go some way in addressing what Donald Rumsfeld famously once described as the unknown unknowns, those things which we simply cannot know because we do not know about them. It would also provide a further testing tool to ensure that disclosure is being properly carried out and in turn bolster confidence in the disclosure process.

We note that the Inquiry considers there is sufficient time before the beginning of the Inquiry’s hearing on 13 June to rectify these matters but has made it clear that that is only if those who have provided statements consider carefully any further requests that have been received and direct themselves towards the Inquiry’s list of issues when providing further statements.

We note the Chair’s comments this morning on the start date of 13 June remaining in place.

The Chair’s concern about any further delay is, of course, the same concern that the Scottish Covid Bereaved have. Whilst it is important to start the evidence, it cannot be done at the expense of proper disclosure. The current amount of disclosure is very substantial, and we’re working through what we currently have. Given the numbers quoted this morning, we expect a very considerable number more, perhaps some of it even very close to or during the hearing date.

Those we represent are anxious that something important might be missed by all concerned, or the import of a document not be realised until a later date. We have of course explained to those we represent the Inquiry process is not like a criminal trial and that, if this happens at any point, if necessary, the Chair can recall a witness, and this of course, as Mr Keith has stated, would only be used when it was entirely necessary.

In our written submissions, we asked, as a comfort to those concerned in this regard, the Chair would confirm that if at a later stage information disclosed that ought to have been available for the purposes of preparations of questioning witnesses who have given evidence, the Inquiry can and will recall such witnesses or seek such evidence in written form. We are therefore very much obliged to Mr Keith for conjoining in this suggestion and for the Chair this morning in confirming it.

As I’m sure will be appreciated, there is understandable anxiety when lawyers raise these issues, but this assurance goes some way to assuring those who are concerned to ensure that nothing which is relevant and necessary, but perhaps which has not been provided timeously, will still be considered in evidence by the Chair.

I’d like briefly to move on and make some further comments about matters arising this morning, my Lady.

My Lady is correct, it was the Scottish Covid Bereaved that suggested what might be described as an informal second sift procedure in an application to Senior Counsel to the Inquiry once a witness has given evidence to seek to persuade him that a line hitherto which has not been taken up be revisited.

I agree with the submission made by Mr Keith this morning that this should not be considered an additional administrative task. Rather, it is an opportunity to allow a second bite of the cherry to core participants to participate in the process of eliciting relevant evidence from a witness. This is particularly of assistance if, in the course of giving evidence, for example, a witness has raised a new issue which had not been previously properly considered.

This process was considered in fact to avoid additional formal administrative process in obviating the need to raise the matter with the Chair.

Can we be allowed an opportunity to assure other core participants that this process has been used north of the border to great effect? On occasion, the request for further issues to be explored is taken up by Senior Counsel to the Inquiry, but if not, usually an explanation is provided as to why they will not be doing so. This not only allows a core participant to once again consider whether or not to follow that up under Rule 10 procedure but also allows them to address what will be said against them to the Chair in the formal application.

Of course, if core participants do not want to avail themselves of the opportunity, as has been noted by both Mr Keith and the Chair, the opportunity to seek to persuade Counsel to the Inquiry of the relevance of a certain line of evidence in this informal matter need not be taken up.

Moving on to the question of parity of disclosed material. Can we assure the Inquiry that in relation to parity, in terms of the amount of material being recovered, it is not expected by the Scottish Covid Bereaved. What is expected, as I’m confident has repeatedly been recognised by the Chair, that issues which are considered in relation to England and the other countries are explored to the same extent as in Scotland.

Moving on to the issue of the Every Story Matters. The difficulties in understanding in relation to Every Story Matters do not seem to exist in the same way north of the border in Scotland. The primary issue to be resolved is the interaction of the process with the listening operation taking place in respect of the Scottish Inquiry. We appreciate that discussions are ongoing in this regard, and no doubt further information will be provided by both Inquiries in due course.

Finally, as before, the Scottish Covid Bereaved welcomes the opportunity to be part of the opening videos and have engaged directly with the team from the UK Inquiry in the planning operation. They now look forward to being involved in providing their stories in this process.

These are the submissions for the Scottish Covid Bereaved.

Lady Hallett: I’m extremely grateful, Ms Mitchell. Thank you very much indeed.

In the light of the submissions made earlier by Mr Weatherby King’s Counsel and Mr Lavery King’s Counsel, and knowing what you were going to say from your written submissions about disclosure, I have been discussing that issue further with the Inquiry team, and I can assure everyone, as I did this morning, that I’m very conscious of the problem, and everything is being done that can be done to ensure that you can all be properly prepared by the time I intend us to start on June 13. But I do understand the concerns, and they’re very properly raised, and that’s obviously one of the points of hearings of this kind.

Thank you very much for your other submissions, particularly the support of those whom you represent in contributing to Every Story Matters, the Listening Exercise. As I said this morning, again, it is absolutely vital for me to have that support if I’m going to make recommendations that may reduce suffering and deaths in the future.

Thank you very much indeed, Ms Mitchell.

Next we have Ms Heaven, Kirsten Heaven.