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

Ms Mitchell: I’m obliged, my Lady.

Lady Hallett: I did say the layout of this venue wasn’t perfect, but … are you by a microphone? I can’t quite …

Ms Mitchell: I am. It remains red – oh, it’s gone green, thank you.

My Lady, we have taken careful consideration of what’s been said this morning and hope to restrict our submissions to less than 15 minutes. I’m obliged to the comments of the Chair and also Senior Counsel to the Inquiry.

There are seven discrete issues that I would like to raise.

The first simply is comment in relation to panelists. We note that a decision has only recently been taken that the Chair will sit without a panel. It’s disappointing that a decision has been taken so late and in such proximity to the hearings, under explanation that the Prime Minister was conscious of not wishing to delay the production of a report from this Inquiry.

This desire doesn’t seem to be a consistent approach of government in dealing with requests from the Inquiry, particularly as we’ve heard this morning in relation to Rule 9s.

The second issue is that of Rule 9 requests. The Scottish Covid Bereaved are obliged to Counsel to the Inquiry and the Inquiry legal team for providing the update that they have. It will come of course as no surprise to my Lady that the Scottish Covid Bereaved are concerned to understand that this process is not being carried out as it should by all government departments.

As ought to have been clear to those organisations, supplying insufficient detail suggests a lack of co-operation with the work of the Inquiry at the most fundamental level of the provision of specific information. The Scottish Covid Bereaved are grateful in respect of the transparent way in which Counsel to the Inquiry and the Chair is dealing with this matter, and anticipate that those in receipt of Rule 9 letters which have been responded to in a less than satisfactory way will now understand that they properly require to do so.

The Inquiry this morning and Senior Counsel to the Inquiry has mentioned the fact that repeated deadlines have passed and extensions have been required. It doesn’t need me to highlight to the Chair that if repeated deadlines are allowed to pass with impunity, a deadline becomes no more than a suggestion by which date documents should be provided.

The way in which these Rule 9 responses have been dealt with does not provide the Scottish Covid Bereaved with confidence that, where appropriate, the same parties understand and are properly implementing their disclosure duties.

We would ask this morning that the Chair, in the event of further time limits not being obtempered, gives consideration to what practical steps she can take in order to highlight to those who are not responding timeously to requests that this matter will not be tolerated by this Inquiry.

Number three, the redaction of material and WhatsApp messages.

We note of course what has already been said by the Chair and Senior Counsel to the Inquiry that these matters will shortly be addressed elsewhere. Briefly, the Scottish Covid Bereaved wish to make some observations which we hope will be heard and considered, primarily by the Cabinet Office, given we understand the view of the Chair and Counsel to the Inquiry already.

Again, it won’t come as a surprise to the Inquiry that the view of the Scottish Covid Bereaved is that whatever is supplied, retracted or otherwise, the process of consideration and retraction will have to be carried out by the Inquiry. Given the very short timescales left, caused by the unnecessary delay of the Cabinet Office, it is submitted that this in and of itself should be sufficient for the Cabinet Office to consider that matters should be passed unredacted to this Inquiry.

If it carries out that redaction process first and then gives it to this Inquiry, it means that the job has to be done twice. At a most practical level, this will no doubt possibly potentially delay this project further.

We would respectfully submit that sending to this Public Inquiry unredacted copies of everything would be consistent with the Prime Minister’s view that decisions should be taken with a mind to not delaying the production of a report by this Inquiry, and we would commend this as a way forward to the Cabinet Office.

The second issue of concern is that the Cabinet Office considers it is in a place to consider what is relevant to this Inquiry, for only then could it be assured that it is redacting things that it considers are irrelevant. The Scottish Covid Bereaved do not share the confidence of the Cabinet Office in this task. This Inquiry needs to obtain and provide to core participants documents that provide a transparent insight into the working of government during a lengthy period of national crisis. From what families of those who died during Covid have heard so far from those who have made the decisions, it does not inspire any confidence that by obtaining only formal documents this will suffice for us to be able to build a picture of what was happening. Matters which may not strike the Cabinet Office as relevant may be highly relevant in context.

The Inquiry is, of course, best placed to have the best insight into what is and is not relevant, and that is why Parliament has enacted a statutory scheme which places the Inquiry as the heart of deciding what is and is not relevant.

Finally, what is being sought is written records recording the work of public servants involved in taking decisions which affected millions of people in the UK. This Inquiry has repeatedly stated it will be robust, and its actions to date support that claim. A robust approach in the present circumstances is the ingathering of potential relevant information in an unredacted form and allowing this Inquiry, the body best placed to do so, to carry out its job.

If parts of the documents are clearly irrelevant, they can be redacted by the Inquiry. Only then can there be confidence that the job is being done and the application of the proper test for the disclosure and that it is being done in a transparent way.

There can be no good reason for failing to provide the documents requested to the Inquiry in an unredacted form save for a pathological need to protect information for its own sake rather than there being anything intrinsic to the information that requires to be kept secret. The government is or at least should be answerable to the people. The public, through this Inquiry, are entitled to know what decisions were taken, by whom, and when.

Moving briefly on to the issue of WhatsApp messages in particular.

In relation to WhatsApp messages and informal methods of communication, we note that a request has been made for over 30 Cabinet witnesses to provide relevant information and that only three have complied, including Mr Johnson, and even then there have been redactions.

The Scottish Covid Bereaved remind the Inquiry of the media reporting of Mr Hancock’s book where it is said:

“We now chew over big decisions elsewhere and relegate formal meetings to rubber-stamping exercises.”

It’s therefore vital to understand where and when, using these, for example, informal methods of communication, where these big decisions were being taken, and that’s why it’s vital that this information is captured and presented to the Inquiry in an unredacted format to allow this to happen.

At the preliminary hearing on 1 March we stated that anything less than full disclosure would be considered as an attack on the integrity of both the UK and the Scottish public inquiries by the Scottish Covid Bereaved. We said that no individual, no matter how powerful, can be allowed to interfere with the pursuit of truth, justice and accountability in this Inquiry. Those who lost their lives to Covid-19 deserve nothing less.

At the time, Hugo Keith KC explained to the Inquiry that each witness to the Inquiry had been asked to disclose emails and other correspondence relevant to the issues addressed in their proposed witness statements, and informal or private communications about the government’s response to the Covid-19 pandemic to which they were party.

He added that the documents include but weren’t limited to WhatsApp group messages, private messages, email communications, contemporary diary or other notes, and explained that he had cast the net widely and with a fine mesh.

In relation to Scotland, we have been advised by the Scottish Ministers’ counsel that the former First Minister Nicola Sturgeon was asked for such informal message but she has none. Ms Sturgeon is, of course, due to give evidence along with the former Deputy First Minister, John Swinney, Catherine Calderwood and former health minister Jeane Freeman in Module 1 in three weeks’ time.

The Inquiry will know that there will be overlap between witnesses to this Inquiry and witnesses to the Scottish Inquiry.

A request has also been made in the same terms by the lead solicitor Aamer Anwar for the Scottish Covid-19 Inquiry in relation to WhatsApp messages.

On 4 June on BBC Scotland a former health minister, Jeane Freeman, appeared on the programme and was asked for all WhatsApp messages and other materials to be released. She stated, “Nobody’s asked for these WhatsApp yet from the Scottish Inquiry, so therefore nobody’s refused”. We note that Ms Freeman limited her comments to the Scottish Inquiry, but in light of all of the foregoing, the Scottish Covid Bereaved have a number of questions.

As previously stated, it’s for the Inquiry Chair to determine what is relevant or potentially relevant. We understand that if a witness says, “I have some things of relevance”, then the position of this Inquiry is that the information should be provided in whole in order then to establish what is relevant and what is not relevant.

What we ask, though, is where a witness says, “I have nothing of relevance”, in relation to a request for informal communications, is that an end to the matter? Is this primary consideration of all communications the start and the end of that process?

Because the Scottish Covid Bereaved would submit that the Inquiry should determine whether or not there is anything relevant to the Inquiry, and not the person from whom the informal communication method is requested. Given the fact that we are told that formal meetings were rubber stamped, it may be, for example, vitally important about the organisation or the timing of a meeting which would not perhaps strike anyone as immediately relevant to the Inquiry, but in fact could absolutely be so.

It’s submitted that, despite the clear way in which this has been asked for, it might not be clear to witnesses that if any communication has been made by a witness which relates to their involvement in Covid, the data should all be made available for the Inquiry to carry out this process.

Can we be certain that the witnesses are carrying out this primary test correctly?

Further, apart from Ms Sturgeon, we are not aware if any of the other Scottish witnesses relevant to this module have considered whether any type of this information ought to have been provided to the UK Inquiry. We would submit that Ms Sturgeon and any other Scottish minister should be no different a position to the position of Mr Johnson, Rishi Sunak or Matt Hancock, and that, if not already done, a request should be made of the Scottish ministers to provide to the Inquiry any communications held by informal means, in order that the primary relevance test can be carried out by this Inquiry.

My Lady, I only have a short number of comments still to make, but I note the time. Would my Lady prefer me –

Lady Hallett: I’ve just been told, Ms Mitchell, that Ms Heaven, who is speaking for the Covid-19 Bereaved Families for Justice Cymru, can’t be here this afternoon, so if everyone will forgive me, and if their tummies aren’t rumbling too much, I would go on, complete your submissions and Ms Heaven’s.

Ms Mitchell: I’m obliged and I will take it short, my Lady.

Lady Hallett: Thank you.

Ms Mitchell: In relation to Cabinet collective responsibility, we note the Cabinet Office may no longer wish to rely on this principle, and we look forward to hearing from Mr Chapman in this regard.

We would ask, rather than me reiterating it here, that the Cabinet Office read the written submissions provided in this regard to understand the position of the Scottish Covid Bereaved.

As will be unsurprising, it is that the Scottish Covid Bereaved are put short of the view that there is no principle which, in the modern day, should prevent proper scrutiny being brought to bear on the decision-making process taken by publicly elected servants in circumstances where the lives of millions of people depend on those decisions being properly taken.

Five, disclosure to core participants.

We note the progress being made with disclosure for Module 2 and the work being done to provide these as soon as possible. We note the alarming number of 35,000 documents. We simply want to place a flag, my Lady, to note that we are concerned that the number of documents which were being disclosed means that there will be little time for core participants to assess these to a meaningful degree up to and before the Inquiry is due to begin. We appreciate, and of course desire, the remarkable pace that matters are taking place, but we have to flag up the possibility in the future that it may be we have to effectively let the Inquiry know that questions that we are being asked or things that we’re being asked to contribute to can’t be meaningfully contributed to at that time until we have a better grasp on disclosure.

We understand that we are having a great deal of input into how matters are done, provisional list of witnesses, provisional list of issues, proposed evidence proposals, and even questions for witnesses. But all those can only have proper input if we properly understand the disclosure in advance. I appreciate it will become a chicken and egg problem, but I simply flag up at this stage that we may need to revisit that matter and inform the Inquiry that we’re not yet in a position to answer timescales which have been set.

Number six, Every Story Matters.

We note that senior counsel explained that the Inquiry does intend to call a range of witnesses from across bereaved groups, and the Scottish Covid Bereaved are happy to help in that regard. We also look forward to seeing the first impact films on 13 June.

Finally, seven, a practical issue, and this is in respect of all modules. We attended at the familiarisation hearing this morning and it was explained to us how the transcripts would work, and that we would be able to intermit with those transcripts, by way of highlighting, by way of editing, by way of taking annotated notes. That’s all well and good, until we were told that, however, we can’t keep those, and at the end of the day those disappear. Which unfortunately, in a practical sense, simply defies the point of the process, because it means that there is no way of us being able to record that.

We would ask that the Inquiry look into software which would allow participants to save the annotated transcripts in order to avoid duplication of work, so as not to provide added expense to the public purse if that work has to be duplicated after hours of the Inquiry.

These are the submissions for the Scottish Covid Bereaved, unless there is anything further, my Lady.

Lady Hallett: No, thank you very much indeed, Ms Mitchell. As ever you make some important points, and the last one I had no idea. I will see whether anything can be done. If it can be done, we will do it, but I’m not sure, I’ll will have to check.

Could I also thank those whom you represent for their participation in the first impact films, there should be a series of films, because, as I said earlier, it was extraordinarily moving, and I know that Scottish Covid Bereaved took part in it, so thank you very much.

Ms Mitchell: I’m obliged.

Lady Hallett: Right, Ms Heaven, where are you? Over there.