16. Reply Statement by Lead Counsel to the Inquiry

Mr Keith: My Lady, may I briefly attempt to sweep up those issues which, in our submission, require to be responded to and can usefully be dealt with straightaway.

In relation to the application for the Inquiry to disclose the Rule 9 requests that it has made to the myriad number of recipients, I repeat the submissions that I made earlier, and I would simply observe this in addition: in addition to there being no basis in law or past practice to the disclosure of the Rule 9 requests, it would simply serve no purpose at all in the particular context of this module, because of course the core participants are beginning to receive the documents generated by those very same Rule 9 requests already.

The concern expressed by the core participants, which we readily understand, is that there is fear on their part that we are not sufficiently keeping the corporate feet of the material providers to the fire in relation to their response to those Rule 9 requests, that they are not giving us what we seek, and that they’re not sufficiently and appropriately responding.

As I’ve said earlier in my oral submissions, confidence can be placed in the Inquiry because it is absolutely obvious that we are keeping their corporate feet to the fire. All the issues that I’ve brought to your attention this morning are all concerned with the number of ways in which we have ensured that we obtain what we wish from the material providers, and so there really is no practical purpose to be gained in disclosing the original Rule 9s now from some time ago.

In relation to the submissions from Bereaved Families for Justice Cymru, an issue was raised about whether or not it would be possible to save annotations on the electronic transcription system. The answer to that is: yes, it will be possible, it’s just not possible today, but it will be possible for the full hearings.

Submissions were advanced as to the extent to which WhatsApps have been requested of the Welsh Government Rule 9 recipients. We are concerned of course today with Module 2, and in relation to Module 2 we have sought WhatsApps relating to Mr Drakeford, who is the only minister in relation to whom we’ve issued a Rule 9 in Module 2. But of course there is much more extensive Welsh evidence expected for the purposes of Module 2B.

My Lady, you were addressed by Mr Metzer, on behalf of the Long Covid groups, in relation to the extent to which long Covid would be an issue in Module 2. My Lady, he expressed the serious disappointment of his clients and indeed his own disappointment that Module 2 would not be looking at long Covid.

My Lady, I can absolutely assure him we are looking at long Covid in the context of Module 2. Long Covid is an injury, a serious condition, even a serious morbidity which is the result of having had Covid.

Module 2 is looking at the extent to which the decision-makers bore that responsibility in mind, and of course witnesses will be asked to what extent they considered long Covid and, if they did not consider it, why they did not.

Indeed, the questions that Mr Metzer posed are paradigm examples of the sorts of questions which will inevitably be put to the witnesses in Module 2. But the medical and epidemiological examination of long Covid is not something for Module 2. That is something which will deserve and receive its own scrutiny in the context of Module 3 and healthcare.

My Lady, in relation to the submissions concerning the capturing of the testimony of children and young people for the purposes of Every Story Matters, my Lady, without piercing the veil of communications between yourself and your team overmuch, I can say that I know that you have directed that to be rapidly looked at, to be considered straightaway, and you have repeatedly expressed your wish that such testimony can be, to use the phrase, captured and brought to the attention of the Inquiry as you proceed through the modules. So that is very much a matter in hand.

My Lady, in relation to the submissions from FEMHO, firstly a request was made for disclosure of the draft instructions to the experts. My Lady, the core participants have ample opportunity to comment on the first drafts of the actual expert reports. So, to the extents that the drafts may not cover areas or issues that they would wish to see covered, they are given a full opportunity at that stage to ask the Inquiry team to go back to the experts to cover those additional areas, so little purpose would be gained in disclosing the original draft instructions.

In relation to Southall Black Sisters and the submissions relating to the additional Rule 9s, we will consider what has been said. There is obviously an issue concerning the extent to which we are able, in the confines of Module 2, to look at domestic abuse and the extent to which the government bore that in mind when making relevant decisions on lockdowns, but that is something which I think we will need to enquire into further.

My Lady, finally in relation to Mr Chapman’s submissions, I’m afraid, in our respectful submission, his position will not do.

We are under very severe constraints of time, as you have observed, and we are now of course actively engaged in litigation against the Cabinet Office in the High Court.

They have had ample time to make their position plain, and I would invite you to order that by the end of this week, given the amount of correspondence which has gone to and fro already, the Cabinet Office formally indicates what its position is in relation to unrestricted – that’s to say unredacted – access to the notebooks belonging to Mr Johnson which it currently possesses and which it intends to return to him; secondly, what its position is in relation to the return to Mr Johnson of his dairies, which Mr Johnson has indicated we may of course examine on an unredacted basis; and, thirdly, by the end of the week, what their position is in relation to our non-national security unrestricted unredacted access to the phone.

I’m afraid experience has shown that the Cabinet Office’s position on all these matters is not altogether clear, and we would be very grateful for a formal direction to that effect.

In relation to the WhatsApps – that is to say the WhatsApps relating to the many other witnesses who are looked after by the Cabinet Office and who have received Rule 9 requests – we would be grateful for a schedule, by the end of this week, of all the WhatsApp groups and threads relating to the witnesses looked after by the Cabinet Office, in relation to whom they have received Rule 9 requests now some time ago.

Lady Hallett: Before I make that order, Mr Chapman, I’ll give you an opportunity to make any submissions. There were four matters there, I don’t know if you had a chance to …

Mr Chapman: No submissions to make. Thank you.

Lady Hallett: Very well.

Mr Keith, I make the directions that you seek, that I want those matters by the end of the week from the Cabinet Office.

Mr Keith: Thank you.

Lady Hallett: Anything further?

Mr Keith: No, thank you, my Lady.

Lady Hallett: Very well, that brings us to the end of today’s proceedings.

I’m very grateful to everybody who’s attended here in person and followed our proceedings, and also those who have been following online. I hope that we managed to allay some concerns, although I’m very conscious that there are concerns that remain.

I repeat an undertaking I have given before, but I’ll do my very best to address those concerns and where possible resolve any issues. I can’t always promise to do what everybody wants me to do, but I’ll do my very best within the constraints upon me.

So thank you all very much. The next time I think the Inquiry team meets core participants will be when we start hearing evidence next week.

Thank you all.

(4.16 pm)

(The hearing adjourned)