4. Submissions on Behalf of Sir Patrick Vallance by Mr Hill

Mr Hill: My Lady, we’re grateful for this opportunity to address you, and I won’t keep you long.

The background is that this is a procedural matter. It is about how Sir Patrick’s evening notes should be displayed on the screen and on the website during evidence. It does not in any way affect how your counsel and core participants may use those notes when asking questions of witnesses, or when making opening or closing statements.

Contrary to the submissions of the media organisations, it is not an application for a section 19 restriction order.

The context is set out briefly in the written submissions that we have provided to you, and also from paragraphs 471 onwards in Sir Patrick’s statement, second statement. In short, the notes were, in his words, a brain dump. They were written at the end of immensely stressful days to protect his mental health. They represent a snapshot of how he felt in the moment of writing them. He did not amend them if he changed his mind later, he made no attempts to correct them as and when he learnt new information. He describes them as, and I quote:

“… a form of release that helped me to focus on the challenges of the next day, rather than dwelling on the events of the last. It was my way of creating some space for myself in what could have been an overwhelming situation.”

As Sir Patrick makes clear, the notes were never intended for publication. He had not shared them with anyone else, and they would have remained unseen had it not been for a request by this Inquiry. In response to that request, Sir Patrick voluntarily provided the notes to the Inquiry in full, in unredacted form, and within the timescales agreed with your team. Since then, he and his legal team have worked with the Inquiry to allow for the notes to be disclosed to core participants to inform their work in this module. Both sides, we hope you will feel, have taken a constructive approach to this and, despite the sensitivity of the material, the redactions have been agreed in all cases.

The legal position is set out in our written submissions, and I won’t repeat it in full. We say that the Inquiry’s use of the notes amount to an interference in Sir Patrick’s right to private and family life under Article 8 of the European Convention of Human Rights and the common law. Authority for that proposition, should we need it, comes from the Prince of Wales case, which is at paragraph 7 of our submissions. That is the Court of Appeal case. It also applies to the High Court case as well.

We say that that means that each and every action taken by the Inquiry in respect of those notes must be proportionate in order to be lawful, and it’s here we say that the media organisations get the law wrong. It’s not enough to say, as they do, that once the notes have been redacted and disclosed to core participants, then Sir Patrick has no reasonable expectation of privacy left, and he has no Article 8 rights left. We say that’s just wrong.

Sir Patrick retains that reasonable expectation of privacy, not least because the notes were disclosed according to the strict terms of the Inquiry’s confidentiality undertaking, and those terms require that those notes are only seen and handled by those that have signed that undertaking, they are only to be used for purposes of furthering the work of this Inquiry, and they are not to be published unless and until they are shown in the hearings or by an order that your Ladyship makes.

We understand that those terms are taken extremely seriously by your Ladyship, and by your Ladyship’s team.

There is an obvious distinction between disclosure to core participants under the terms of that strict undertaking and publishing the material to the world forever.

We note that in the Prince of Wales case, disclosure to a group of associates of the Prince of Wales did not exhaust his reasonable expectation of privacy and his Article 8 rights in diaries that he had written and circulated to that group. Mr Bunting, gloss in his submissions for media organisations, ignores that distinction, he ignores that authority.

So returning to the law and on the basis that we are right that Sir Patrick retains Article 8 rights in the notes, the measures taken in respect of those notes must be proportionate, and the well established test for proportionality is that at paragraph 7 of our written submissions, taken from the case of Bank Mellat. In particular, a tribunal must consider what the purpose of an interference is, whether it can be achieved by a less intrusive means, and ultimately whether a fair balance is struck between the interests of the individual and the interests of the community.

The interests of the community include the Article 10 rights of the media, and important considerations of open justice. They also include the public interest in witnesses to public inquiries having confidence that sensitive material that they provide will be handled lawfully and fairly.

Applying those principles in this case, the purpose of showing the notes on the screen and the website is to facilitate the understanding of the evidence that is heard in this room and to facilitate for reporting of that evidence, including by those who are not here but are following remotely, and we agree that is a legitimate purpose. Nothing we propose will inhibit reporting of what is said and what is referred to in this hearing room. The submissions that we make are aimed at what Mr Smith, at paragraph 10 of his helpful note, describes as material that is “not directly relevant to the witness’s questioning”, the extraneous material that the witness is not being taken to.

Having agreed that that is a legitimate purpose, the next step must be to assess what is the least intrusive means of achieving that purpose, and we say that it is clear from Mr Smith’s note that there is a less intrusive means and the usual approach of showing the whole page. Mr Smith acknowledges frankly at paragraph 11 that various options are, in his words, possible but undesirable.

We would say that the proposed approach at paragraph 15 is the best one, which involves the creation of a new document containing the relevant extracts, and that is something that we had suggested at paragraph 16 of our written submissions.

We say that is eminently achievable and we say that it strikes the correct balance. It allows the media to report accurately the oral evidence, including in respect of material to which reference was made.

We accept that this means that there will be an additional burden on the Inquiry legal team. We do not ask for it lightly, not least because we are conscious of how exceptionally hard your team is working, and we, core participants, only get to see a fraction of that. However, we say that is what the law requires.

It’s not unusual for some documents held by a public inquiry to require additional care in the way that they’re handled and the way that they’re disclosed and the way that they are shown. The most obvious example is documents relating to national security, but it also applies to more personal documents, such as medical notes or graphic video footage. It’s an added difficulty, it’s an added burden, but it goes with the nature of the work.

We say that Sir Patrick’s evening notes are in that category. We also say that they have been treated with appropriate care by the Inquiry to date. For example, assurances were given on how the unredacted notes would be handled, how the transcripts would be produced. We are grateful for that approach and we ask only that it is continued.

The approach at paragraph 15 of Mr Smith’s note is a practical and proportionate way of doing that. Your Ladyship is well served by an extremely experienced and able team of solicitors, and we have no doubt at all that another spinning plate could be added to the pile that they have without the whole thing crashing down.

I make four additional points.

First, Sir Patrick’s evening notes are one of many thousands of sources for the Inquiry to consider. There will be some reference to them, but a manageable amount for these purposes, and that’s seen in the evidence proposals for the coming week: two extracts for Professor Ferguson, nine for Professor Edmunds and the/same eight for Professor Yardley and Professor Rubin. It would be highly surprising if the witnesses were in fact taken to all of those extracts.

Second, the Inquiry does require, where possible, passages of evidence to be put to witnesses in advance, and that is for the purposes of getting their best evidence about those passages. We say the system can be adapted for these purposes, and we understand that Mr Smith considers that it can be as well, albeit with some extra work.

Third, as Mr Smith acknowledges there is a failsafe, in that the extract, if needed, can simply be read to the witness if the necessary preparation work hasn’t been done. That’s been done to date and it’s been done with no detriment to the witness evidence. No sensible argument could be made that that has impinged in any way on the press’s Article 10 rights.

We would also say that if it proved necessary a document could be produced retrospectively, we would have no difficulty with that.

Fourth, adopting this approach will not in any way inhibit your counsel or core participants from putting materials from the evening notes. At most, it requires them to be a little bit more organised in how they do it if, and only if, they wish that passage to be shown on the screen.

In conclusion, we say that the legal position is clear, and as is described above. The paragraph 15 approach is for least intrusive means available. The law requires that it should be adopted.

It’s also, however, a question of fairness and of mutual respect. Sir Patrick has done all that could reasonably be asked of him to assist this Inquiry. He has provided witness statements in Module 1, Module 2 and he will provide one in Module 4. His Module 2 statement is some 100,000 words long and is, on any objective reading, a thoughtful, analytical and full response to the many questions posed of him by the Inquiry. It was the product of an immense amount of hard work.

He has provided his most intensely personal and private notes to the Inquiry in full, without redactions, and in line with the Inquiry’s deadlines. He produced them voluntarily without recourse to the courts. He accepts that relevant sections should be disclosed to the core participants. He accepts that some part of the notes have and will be used in the hearings. I do not pretend that that is easy for Sir Patrick. It is no doubt obvious to all how uncomfortable it would be for anyone to have their hastily written, private and personal reflections published to the world. Sir Patrick has nonetheless co-operated entirely with the Inquiry, because he respects the importance of its work and he shares in the common goal of learning lessons to improve our resilience in the next pandemic. All he asks in this application is that the Inquiry continues with the approach it has taken to date of handling his notes with the appropriate care and sensitivity.

Unless I can assist further, those are my submissions.

Lady Hallett: No, you have been very helpful, Mr Hill, thank you very much indeed.

Who else wishes to make submissions? I have Mr Bunting KC’s submissions on behalf of the media organisations.

Does anybody else present wish to make … Ms Mitchell.