Transcript of Module 2A Preliminary Hearing on 26 October 2023

(10.30 am)

Lady Hallett: Good morning, everyone.

This is the third preliminary hearing into Module 2A, key decision-making in Scotland, and Mr Jamie Dawson King’s Counsel will now set out for me any progress that has been made in relation to the hearings that start in January 2024, and any problems that we have encountered.

Mr Dawson.

1. Statement by Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Good morning, my Lady.

As you have indicated, I am Jamie Dawson KC, Lead Counsel to the Inquiry on Module 2A. I appear this morning along with my learned junior, Bethany Condron of the English Bar, one of the team of junior counsel working with me on the investigations in and preparation of Module 2A.

Those who are listening will recall that Module 2A relates to the core political and administrative decision-making of government in Scotland and in its management of the Covid-19 pandemic, with a focus on the key decisions made by the Scottish Government.

This, as you have said, my Lady, is the third preliminary hearing in this module. The first and second preliminary hearings in Module 2A took place on 1 November 2022 and 21 March 2023 respectively. This will be a hybrid hearing with some core participants appearing or participating remotely, and some in person here with us at Dorland House, the Inquiry’s hearing centre in London.

The proceedings are streamed on YouTube to allow those members of the public with an interest in the work of the Inquiry to listen in.

There are now nine core participant groups in Module 2A, and all are legally represented. Before saying a little about their role and their involvement in the work of the module, may I introduce the core participants and their representatives, present either in person or remotely at this hearing.

Ms Claire Mitchell KC appears on behalf of Scottish Covid Bereaved, who have made a written submission. She appears remotely.

Mr Geoffrey Mitchell KC appears in person with us in London on behalf of the Scottish Ministers, who have also made a written submission.

Mr Daniel Friedman KC appears on behalf of Disability Rights UK and Inclusion Scotland. He is remote, and his clients have made a written submission.

Ms Genevieve Woods appears in person on behalf of the National Police Chiefs’ Council.

Ms Olivia Smith appears on behalf of the Scottish women’s rights organisations in person, who have been granted core participant status since the last preliminary hearing in March 2023.

Mr Simon Bowie appears remotely on behalf of Public Health Scotland.

Ms Una Doherty KC appears on behalf of NHS National Services Scotland, and is also remote.

The other core participants in this module who are not appearing at this hearing are the Trades Union Congress and the Scottish Trades Union Congress, who have joint core participant status, and Scottish Care.

The current plan for the hearing, my Lady, is that Ms Mitchell KC will address you later on behalf of Scottish Covid Bereaved and Mr Mitchell KC will address you on behalf of the Scottish Ministers. It may be that I will be able to add something further after they have spoken.

My role today is to provide an update for core participants and for the public on the work of Module 2A, and to outline our thinking for the module as we move afford to the evidential hearings, which are due to take place early next year, commencing on 16 January 2024 for a period of three weeks.

As intimated at the previous preliminary hearing of this module in March, the evidential hearings in Module 2A will take place in Edinburgh. Since that time, the Inquiry team has been researching suitable venues to allow it to live up to its commitment that its important work at those hearings be accessible to the Scottish public, in whose interest the hearings and the work of the module are being undertaken.

The hearings will take place in January 2024 at the Edinburgh International Conference Centre in Morrison Street. The hearing venue has been selected as a relatively accessible one, in central Edinburgh with good transport links, to facilitate the attendance of those who wish to be there in person to hear the proceedings. The venue has been used for other large events including public inquiries. Members of the Inquiry team have put in significant efforts to seek to ensure that this venue will allow the business of the Inquiry to be conducted effectively and respectfully and to replicate the nature of the space which has been used for the hearings in Modules 1 and 2 here at Dorland House, as far as possible. For those who cannot or do not wish to attend, the proceedings will be able to be watched online.

In order to set out the work which the module has undertaken since the last preliminary hearing and our plans going forward to the evidential hearings in January, I intend to address the following areas.

One, core participants.

Two, an update on Rule 9 requests, statements and exhibits.

Three, the gathering of documentary evidence from the Scottish Government.

Four, documentary discovery and disclosure to core participants.

Five, the list of issues, plans for the hearings in January 2024, and the provisional list of witnesses.

Six, expert witnesses.

Seven, Every Story Matters, commemoration and the impact film.

Eight, update on co-operation with the Scottish Covid Inquiry.

Finally, nine, some concluding remarks.

So the first item on my list is core participants.

The now nine core participant groups in the module have been provided with regular updates on our progress since the last preliminary hearing in March. This has been provided in the form of a detailed written account of progress which has been made in the module by way of investigation. In accordance with our usual practice at preliminary hearings, in advance of this hearing the core participants received both a monthly update on the details of the progress in the work of the module, and a note prepared by me about matters which I intended to raise at the hearing itself.

They were all given the opportunity to submit written submissions, and to make oral contributions to the hearing today, if they wished to do so.

In addition, regular meetings have continued to take place between the Module 2A core participants and/or their representatives and members of the Module 2A solicitor team to supplement the information made available to them in the monthly regular updates issued by the Inquiry and to deal with matters more specific to each core participant.

Further, in order to promote core participant engagement in the preparation for the Module 2A hearings, meetings have been offered to the core participants which have been or will be attended by senior counsel instructed for Module 2A, namely me.

These meetings have been designed to allow information to be disseminated about the plans for the Module 2A hearings, in particular bespoke details relevant to any given core participant group, and to continue the process of core participant engagement in the module. Core participants have been allowed to suggest broad areas or matters which they wish the hearings to cover, falling within the scope of the module, into which they will have more detailed opportunity to contribute as the hearings approach, a matter to which I will return.

So far, such meetings have taken place with five of the nine core participant groups. The offer remains open for similar meetings to be undertaken for the benefit of the others.

Update on Rule 9 requests, statements and exhibits.

Those who are listening will recall that Rule 9 requests are the means by which the Inquiry generally seeks evidence from organisations or individuals who have a contribution to make to the work of the module, either in the form of the production of documentary evidence and/or the provision of written testimony in the form of a statement to the Inquiry.

The Module 2A solicitor team circulated an update note to core participants on 9 October of this year, providing them with the details of the multiple Rule 9 requests which have been sent out by the module, either as standalone requests relating only to matters to be covered in Module 2A or in conjunction with other modules, in particular the other Module 2s, where the role and remit of a particular organisation merited it.

To this point, Module 2A has issued more than 140 Rule 9 requests for evidence. These have included: 66 requests to organisations which represent groups of Scottish society which have suffered a particular impact as a result of the Covid-19 pandemic, these have been analysed and used in formulating the Rule 9 questioning of those responsible for its management in Scotland, including Scottish Government ministers; 16 questionnaires which were sent to members of the Scottish Government Covid-19 Advisory Group to ascertain their initial views on the important roles which they were asked to play in providing advice to government and the ultimate decisions taken by the Scottish Government in its management of the pandemic. These responses were also used as a basis for lines of questioning addressed to decision-makers in government and also as a starting point for detailed Rule 9 requests which have now also been sent to these important independent advisers to the Scottish Government.

As I set out at the last preliminary hearing in March, requests for corporate statements were made towards the end of 2022, to the numerous Scottish Government directorates, each of which had some role in the management of the pandemic in Scotland. The responses to these requests were received and analysed within the Inquiry. They were found generally to be of use in setting out responsibilities and structures, though were not as detailed as regards key decisions actually made by the Scottish Government. In order to balance the need to get statements finalised and disclosed to relevant parties, in particular core participants, these statements were signed and disclosed to core participants on 14 July of this year.

Feedback after analysis of them, put together by the Module 2A counsel team, form the basis of further Rule 9 requests for supplementary corporate statements from these directorates, which have now been compiled, along with a further statement from the strategy and external affairs directorate of the Scottish Government relating, amongst other things, to the work of the outbreak management directorate and the Covid co-ordination directorate, as well as the structure and activities of the Scottish Government’s Resilience Room, insofar as it played a role in the management of the pandemic.

In addition, further Rule 9 requests have been issued to the directorate of health and social care, in relation to the Scottish Government’s role in the management of the pandemic in the care sector, and in connection with the numerous advisory groups beyond the Scottish Government Covid-19 Advisory Group, which provided assistance to the Scottish Government in its work on Covid-19. These statements are currently in the process of being finalised.

Further corporate requests have been sent to numerous organisations which had a role in the management of the pandemic in Scotland, including the Office of the Secretary of State for Scotland, significant NHS bodies including Public Health Scotland and NHS National Services Scotland, the Care Inspectorate, the Scottish Parliament Corporate Body, the Crown Office and Procurator Fiscal Service, Police Scotland, the Scottish Courts and Tribunal Service and COSLA. Other organisations with a relevant perspective to share on the core decisions taken in the management of the Covid-19 pandemic in Scotland, including the Royal Society of Edinburgh, the STUC, Scottish Care, Audit Scotland, the Children and Young People’s Commissioner for Scotland, Uncover, an academic group within Edinburgh University set up to assimilate research and information about Covid-19, which has also provided assistance to the Scottish Inquiry, the Scottish Human Rights Commission and Justice Scotland have also been contacted and asked to provide statements and documents on matters relating to their roles and responsibilities.

These requests have sought both corporate statements from these organisations and also extensive documentation relating to the scope of Module 2A.

Additionally, Module 2A has, since the time of the last preliminary hearing, sent detailed Rule 9 requests to a large number of individuals within these bodies. To date, a total of 103 requests have been sent to individuals. Amongst others, these requests have been issued to the key Scottish Government decision-makers at the time of the Covid-19 pandemic, including Nicola Sturgeon, John Swinney, Jeane Freeman, Humza Yousaf, Kate Forbes and other Cabinet Secretaries and ministers. These requests have also been issued to the key advisers to the Scottish Government at the time, including Catherine Calderwood, Gregor Smith, Jason Leitch and the members of the Scottish Government Covid-19 Advisory Group. Key civil servants have also received such requests.

There have been separate individual Rule 9 requests issued by Module 2A to UK Government ministers involved in intergovernmental working with and in Scotland. Rule 9 requests have been sent to Michael Gove and Alister Jack. The draft statements of these key individuals have in large part been received and continue to come in. Their contents are being analysed by the Module 2A counsel team.

My Lady, you have set a tight timetable for this Inquiry. Module 2A is no exception to that rule. The timetable to which we are working requires to be consistently balanced against the scale of the matters which the module intends to address, their complexity and, self-evidently, their importance to the people of Scotland. Some of the evidence requests which have been sent to individuals comprised around 1,000 questions. All key decision-makers received Rule 9s with questions running into the hundreds. They were all drafted by counsel, who have worked extremely hard over many months to try to probe every corner of government decision-making about the management of the pandemic in Scotland. They were based, in part, on evidence with which the Inquiry has been provided by groups who were particularly affected by the pandemic and who drew to our attention in their impact statements issues which they considered ought to be addressed in the module and for which government decision-makers ought to be held to account.

The detail which they included attempted to get to the nub of the key decisions and why they were made. They attempted to uncover and probe weaknesses and failures in government decision-making which, in due course, we hope will inform your recommendations about how things can work better in the future.

It has been spelled out clearly to those in receipt of Rule 9 requests for written statements that timelines require to be adhered to as well as the detail of the requests respected, if your Ladyship’s ambitious plans for the module are to be met.

That timetable exists so that your Ladyship will be able to report and make what recommendations you deem appropriate on the evidence at a time not too far removed from the events of the Covid-19 pandemic but sufficiently close to them to be relevant, and as likely to protect the people of Scotland from the threats of future similar events as possible.

The requirement for speed must be respected but not at the expense of reasonable thoroughness. The Module 2A team have made clear to those in receipt of the requests that the Inquiry expects the matters raised in each request, though in many cases both numerous and complex, to be answered fully. The Inquiry is grateful to those bodies and individuals who have engaged fully with the requests we have issued and provided statements and supporting documentation in accordance with those requests.

Efforts are being made to ensure that signed statements and their exhibits will be disclosed in time for them to be reviewed by core participants ahead of the oral hearings.

In the case of the senior Scottish Government decision-makers, the requests that have been made have required considerable work to be completed within demanding timescales. The Inquiry acknowledges that the Scottish Government directorates, the individuals concerned and their legal teams have worked hard to respond to these requests. The Inquiry is grateful for their co-operation.

That said, the Inquiry has concerns about aspects of this important part of the module’s work. Given the relatively short period of time remaining before the substantive hearings in Module 2A commence, if witness statements do not address all the matters raised in the Rule 9 request and/or there are delays in meeting the Rule 9 requests for documents and witness statements, these difficulties will have the potential to disrupt the Inquiry’s process unless they are swiftly resolved.

Considerable efforts have been made on the part of the Inquiry to reiterate what is expected of witnesses and material providers. This included a requirement in each request that the witness complete a table indicating where each question had been answered in the response. That system is designed to ensure that care is taken by each respondent to answer each matter put to him or her.

In the Scottish Government’s submission for this preliminary hearing, it is stated at paragraph 3 that occasionally a Rule 9 request seeks information about matters which are not within the knowledge or remit of the witness, which prevents them from answering every question in the Rule 9. For the sake of clarity, if questions had been asked about elements of the scope of the module in which a witness had no involvement, they are of course perfectly entitled to say so and leave those matters to be handled by more appropriately qualified witnesses. We see no reason why this should cause any significant delay.

Module 2A has already commenced the process of having the Rule 9 responses from individuals signed in order that they can be disclosed to core participants without further delay. Where the Rule 9 responses do not, contrary to the clear instruction given to all Rule 9 recipients in each request, address all of the matters raised in the request, Module 2A may send a supplemental Rule 9 request to the organisations or individuals concerned on discrete matters in which the witness or organisation is thought to have had an involvement.

These will be processed, signed and disclosed without delay. To the extent that the requirement to address all questions in the request has not been met by the witness, it may be necessary to explore the reasons why there are unanswered matters at the hearings or at a later stage.

Number three, the gathering of documentary evidence from the Scottish Government.

As I indicated earlier, the requests issued to corporations, which were sent out to the major material providers who have the most prominent roles to play in the work of the module, in particular the directorates of the Scottish Government and Public Health Scotland, were issued in late 2022. Along with requests for written corporate statements, these organisations received an invitation to exhibit to their statements documentary material which supported the matters raised in the response.

In addition, disclosure of material generally relevant to the matters within the module’s scope was sought and some specification of the types of documents sought was generally provided. The main component of the documentary material which has been recovered so far by Module 2A has come from the Scottish Government or its various directorates and individuals who worked within it as part of the Covid-19 response. These documents have been provided in response to the numerous corporate and individual Rule 9 requests which have been issued by or are relevant to the module and are additional to exhibits provided to statements. We refer to these as being part of the general disclosure.

I have a number of observations to make about the documentary recovery exercise of the general disclosure from the Scottish Government.

First of all, some general observations. Most of the general disclosure, as I’ve said, which has been requested by the module has now been received. The process of recovery has gone more slowly than expected, especially with the Scottish Government. This has no doubt, to an extent, been due to the considerable administrative burden which has been placed on the Scottish Government and its legal department by not only this Inquiry but also the Scottish Inquiry. However, there have been numerous misunderstandings on the Scottish Government’s part about what the Inquiry considers to have been perfectly clear documentary requests. These have undoubtedly caused delays.

The consequence of the lengthy communications between the Module 2A team and the Scottish Government which have resulted is that certain pre-prescribed priority documents comprising Cabinet minutes and associated advice, similar minutes and advice relating to the work of the Scottish Covid-19 Advisory Group and the Scottish Government Resilience Room have been produced and are in the process of being analysed by the Module 2A counsel team.

In addition, a residual category of documents relating to core decisions, discussions and communication about them have also been requested and provided. These are currently being processed by the Inquiry team. The total of these two tranches of disclosure runs to thousands of documents.

We would remind core participants and those listening that on 29 June 2023 the First Minister of Scotland made the following commitment in response to questioning of him in the Scottish Parliament:

“It is important that I abide by the rules of the UK Public Inquiry and the Scottish Public Inquiry … to ensure that there is simply no doubt whatsoever, any material that is asked for – WhatsApp messages, emails, Signal messages, Telegram messages or whatever – will absolutely be handed over to the Covid inquiries and handed over to them in full.”

The Inquiry expects that what has ultimately been provided to us by the Scottish Government comprises the full disclosure which the First Minister promised would be provided. If it transpires that this is not the case, the Inquiry will wish to know why.

One thing the Scottish public can, in my submission, be assured about is that very considerable efforts have been made on the part of the Module 2A team to try to get access to the documents originally requested in 2022.

Those who have still to provide documents in connection with either corporate or individual Rule 9 requests should be aware that these require to be produced as soon as possible. Though, to some, the Module 2A hearings may still seem some time away, the Inquiry needs to subject the documentary discovery to significant internal processing requirements which include an assessment of relevance, assessment in accordance with the Inquiry’s protocol relating to redaction, various administrative steps, including the allocation of Inquiry numbers to exhibits, and the uploading of the documents to the Inquiry’s Relativity system.

Further steps are required in accordance with the Inquiry’s processes before documents can then be disclosed to core participants. The documents require also to be substantively reviewed to the extent that that is possible by the counsel team. Hence, the requirement for documents to be produced as soon as possible is now absolutely necessary.

Potentially relevant messages from WhatsApp and other informal messaging platforms.

You will be acutely aware, my Lady, that the issue and content of informal communications, in particular WhatsApp messages, has become a prominent part of the Inquiry’s investigations into core decision-making by the UK Government in Module 2. Their potential importance to this module has been a point made on previous occasions by the module’s core participants, not least Scottish Covid Bereaved. Those conducting the module’s investigations have thus been aware for some time of the need to investigate the usage of such messages by those involved in the governmental response in Scotland.

We are very aware that messages sent by informal methods of communication between key decision-makers and/or their advisers discussing information, advice and the management of the pandemic in Scotland sent during the relevant period can provide important information about and context to the key decisions and issues which are to be addressed in Module 2A.

For the sake of clarity, the term “WhatsApps” is used by us as a term of convenience. What I have to say in this regard should be taken to encompass not only WhatsApp messages but all other informal means of communication which may have been used to communicate in relation to the core decisions made by the Scottish Government in connection with its Covid-19 response, including but not limited to texts, Microsoft Teams and Signal messages. This wide definition has been adopted in requests for information and documents issued by the module.

As a result of the potential significance of informal messaging in the way that government business was conducted at Westminster and as urged by our core participants, we requested as part of our corporate request to the Scottish Government and other significant Scottish public bodies involved in the Covid-19 response, including Public Health Scotland, that they provide us with details about the usage of informal messages, including but not limited to WhatsApps, in the management of the pandemic in Scotland, but also to provide copies of the messages themselves.

For the avoidance of doubt, we sought information about the nature and extent of the use of such informal messaging, including the groups in which they were sent. To be clear, we sought not only messages in which decisions were communicated, but also messages in which matters relating to key government decision-making were raised in order that a full assessment of the basis upon which such decisions were arrived at could be undertaken.

No clear or comprehensive response emerged in the corporate statements from the Scottish Government. No messages were provided.

As I have already set out, extensive individual Rule 9 requests were also compiled for individuals who worked within the Scottish Government operation. The responses to these requests have been administered by the Scottish Government through its Covid Inquiry response team. These requests for information about informal messaging and the messages themselves were reiterated to individuals at that time, in case they held such relevant informal messages. Some of the witness statements that we have received from key decision-makers from within the Scottish Government now suggest that informal communications, such as WhatsApp messages, were used by key decision-makers to discuss matters around the progress of the pandemic in Scotland, to discuss advice received in relation to the pandemic, and to discuss the nature of the decisions that the Scottish Government might have to take.

I should be clear, my Lady, that, subject to one exception to which I will revert, at present the Scottish Government has provided the Inquiry with no WhatsApp or other informal messaging material, either in its own possession or in the possession of the individuals whose individual Rule 9 requests are being handled by the Scottish Government.

Some reliance appears to have been placed in the Scottish Government written submission to this hearing at paragraph 5 on the fact that it has very recently requested the disclosure of such material be required by the provision of a notice issued under section 21 of the Inquiries Act 2005, in order to address data protection concerns. For the sake of clarity, this was not a matter which was raised by the Scottish Government as an impediment to the production of any such messages until very recently, in fact on 5 October 2023, and so should not be taken as a reason for non-production before now. Such a notice is about to be served on the Scottish Government and so it should not act as an impediment in that regard going forward.

One thing that did become apparent when responses were received was that the Scottish Government wished to make something of its policy with regard to the operation of government via these informal messaging systems. As more detail of its precise position on that was required, a further corporate Rule 9 request was issued seeking detailed information about the policy and seeking to augment the lack of detail which the Scottish Government had provided to that point on this issue, in particular in relation to informal messaging groups which were connected to the Covid-19 response.

That corporate Rule 9 response, I am pleased to say, is nearly complete. The process of its compilation has been characterised by what I think could fairly be described as a gradual process of information being revealed, in particular about the policies upon which the Scottish Government wish to rely and the identity and membership of groups which existed and messages which it held. At each stage, more information was revealed which begged more questions and which required further time for response. It now appears to be the position that there were, in fact, numerous groups, 137 on the current assessment, and numerous policies which require to be considered.

Alongside this process and mindful of the fact that, if informal messages existed in the hands of individuals, the nature and extent of that would need to be revealed with sufficient time for them to be recovered and considered, the Inquiry asks the Scottish Government Inquiry response team, who have been assisting with the preparation of individual Rule 9 statement responses, to ascertain the position of each individual, as regards their usage of such systems and the current availability of any messages for the Inquiry’s inspection.

Again, the position in this regard has evolved gradually. To enable us to provide openness and clarity about the position in this regard, both generally and at this hearing, we ask the Scottish Government Inquiry response team to set out in a table the position of each individual, around 70 witnesses in total, as to their usage of such messages, including details of groups in which they participated and the identity of individuals with whom they corresponded in connection with the government pandemic response, what messages still exist and, if they do not exist, why they do not.

A clear theme of the overall response received from and via the Scottish Government is that, although such messaging systems were used in the pandemic response, including by some key decision-makers and others, generally very few messages appear to have been retained.

This is surprising, in particular in light of the apparent availability of such messages in high volumes within the UK Government. This state of affairs has merited further detailed investigation, in particular seeking clarification of whether, how and why messages came to be deleted and of the policies under the terms of which individuals claim that they were entitled to do that, if that is indeed their position.

It is important to point out, my Lady, that, although a significant amount of useful information has been provided by the Scottish Government, as is reflected in the table, the precise position as regards the use of and access to WhatsApps is incomplete, and they continue to provide further information and evidence. The table simply provides no current response on behalf of some of the named witnesses, indicating that this will be forthcoming in the witness’s draft statement. The need not to wait for the statements on these matters was the very reason why the table was requested in the first place.

Further, in places, the information provided in connection with individual witnesses or in their draft witness statements is incomplete, as regards the extent of their usage of informal messaging. There is also little detail about how messages which have not been retained came not to be retained or as to the justification for that position, for instance, whether, when, how and why they were deleted, if that is the case.

All of this has been requested and the requests have been repeated in discussions with the Scottish Government’s legal department. The detail required to understand the full picture has not yet been forthcoming. As a result, the Inquiry is currently considering what steps to take next. This may involve issuing of further Rule 9s or, indeed, section 21 notices to ensure that the important details of the position are revealed and revealed fully to the Inquiry. Whatever route is deemed to be the most appropriate, a swift response will be expected.

In summary, there remains a lack of clarity about what usage was made of these informal messaging systems, what potentially relevant content is still held, where it might be held and what can be recovered by the Inquiry and, if it is not still held, why not.

The Inquiry has sought further information about the circumstances in which such messages have not been retained and is now considering how to push the matter forward against that background.

For the avoidance of doubt, similar requests have been made of other witnesses who played a role in the Module 2A-related pandemic response. Public Health Scotland, for example, has provided access to certain WhatsApp conversations as a part of its general disclosure to the module. Further, one individual who worked for the Scottish Government during the pandemic has voluntarily provided the Inquiry with certain of her WhatsApp messages. Even then, without apparent explanation, these are limited to a five and a half month period, when the scope of the module clearly runs from January 2020 to April 2022.

As I hope to have highlighted, the position as regards the recovery of documents and of these potentially material informal messages from the Scottish Government has been a gradual one. Time no longer permits a gradual approach, if it ever did. We have taken steps to accelerate this process, which we hope will bring the necessary materials to our attention.

One thing I would like to add is a note of caution: though this gradual process is not what we might have preferred, we have not yet had the opportunity to examine what messages still exist. We intend to keep an open mind as to the significance of the responses and not rush to the conclusion that these messages do provide the key to understanding the processes of Scottish Government decision-making in the pandemic. We will not rush to conclusions, but reach them on the basis of the evidence we uncover. One thing of which you can be assured, my Lady, is that we will continue to push this issue until we are satisfied that we are in a position to do so.

Notebooks and dairies.

The Inquiry has made requests for notebooks and dairies from all Scottish Government witnesses. It was originally understood from the Scottish Government that the vast majority of the witnesses for whom they are responsible do not hold and may never have held such materials. The Scottish Government provided the Inquiry with one e-copy notebook, which was disclosed to the core participants on 9 October. Hard copy notebooks from two further individuals were provided to the Scottish Government and these have been reviewed by the legal team for relevancy. Once the review process has been completed in relation to these notebooks, Module 2A will disclose any relevant material as soon as they can.

At the time when the CTI, the Counsel to the Inquiry, note was drafted two weeks ago, these were the only notebooks Module 2A had been provided with by or via the Scottish Government. As Ms Mitchell set out in her submission on behalf of Scottish Covid Bereaved, we too found it difficult to believe that so few notes would have been kept within the Scottish Government in its complex management of the pandemic, when the need to digest complex and voluminous information in short timescales, often remotely from usual working locations, would tend to suggest that doing so would be an important part of maximising the efficiency of the process.

Thus, we asked the Scottish Government to continue to carry out checks to confirm that no other notebooks or dairies are held, either within the Scottish Government or by relevant individual witnesses.

In a not unfamiliar pattern, more information in this regard has come to light gradually. The Inquiry asked the Scottish Government to provide a clear update on the position of the various Scottish Government witnesses in this regard in advance of today’s preliminary hearing, with the result that we have now, in fact, been told that there are 57 notebooks which have been located, with further notebooks being held by an additional four individuals who retain an as yet unconfirmed number. It remains unclear as to whether further such notes will emerge in due course. We continue to push for a complete answer.

Legal professional privilege waiver request.

After prior discussions in this regard, on 3 August 2023, Module 2A formally requested that the Scottish Government waive privilege in the documents being provided to the Inquiry.

Further to this, on 14 August of this year, the Inquiry wrote to the Scottish Government explaining that the Inquiry was constrained from fully carrying out its function as a result of not having access to material which had been redacted from documents by reason of legal professional privilege or pursuant to the Law Officers’ Convention.

Module 2A stated for the Inquiry to understand to the fullest extent possible all of the considerations which were taken into account by ministers and officials, it needed to see all advice provided to them of any description, including any legal advice they were given. If legal advice is redacted, the Inquiry can only see part of the story and may miss important material that might help to explain the decisions taken. As any relevant documents will also need to be disclosed to core participants, may need to be ventilated at hearings and may need to be published and referred to in the final report, it will be necessary for documents to have legal advice contained within them visible to the public at large, as well as for the content of them to be fully understood.

In light of the above and the significant practical advantages of doing so, the Inquiry requested that the Scottish Government waive legal professional privilege and the Law Officers’ Convention privilege. If the Scottish Government is not amenable to doing so, Module 2A has requested that a schedule be completed by the Scottish Government which justifies the claims to privilege that have been made.

To date, all documents which have been provided to which privilege applies have had passages redacted based on LPP. No explanation as to why these particular passages have been redacted has been provided.

The waiver request has been discussed between the Scottish Government and the Module 2A legal team on a number of subsequent occasions. At this point, many redacted documents have already been provided and processed. The hearing is imminent. In the run-up to the preliminary hearing, the Inquiry has been provided with a proposal addressing part of its request in this regard, which is the subject of current consideration and discussion. Core participants will be kept updated of any progress.

Four, general documentary discovery and disclosure to core participants.

In summary, Module 2A has received to date 31,553 documents in total, including 53 Rule 9 responses from impact organisations; 15 initial Rule 9 responses from members of the Scottish Government Covid Advisory Group; 70 draft Rule 9 statements, including 62 draft individual statements; 26 finalised Rule 9 corporate statements; and 28 finalised Rule 9 individual statements.

The Inquiry has disclosed to core participants 7,221 documents to Module 2A core participants, including general disclosure, which includes the following: 59 Rule 9 responses and exhibits, which consist of 23 individual statements and 36 corporate statements, which include Module 2 statements relevant to Module 2A. This group also includes 16 Rule 9 responses from individuals to requests issued solely by this module.

It also includes 52 Rule 9 responses from impact organisations, including those jointly instructed with the other Module 2s, and 15 initial Rule 9 responses from the members of the Government Covid Advisory Group.

Within the materials disclosed to core participants to date are all substantive Rule 9 responses received from impact organisations with supporting documents and footnoted materials; all initial responses received from the Scottish Government Covid Advisory Group participants with supporting documents and footnoted material; expert reports and materials from Public Health Scotland, NHS National Services Scotland, the National Police Chiefs’ Council, the Children and Young People’s Commissioner for Scotland, the Scottish Trades Union Congress, Audit Scotland, the Scottish Courts and Tribunal Service, Scottish Care and the Scottish Government.

Module 2A will continue to make disclosure to core participants on a regular basis. In addition to general disclosure across a number of providers, Module 2A intends to disclose key statements and exhibits from Nicola Sturgeon, Humza Yousaf, John Swinney, Jeane Freeman, Kate Forbes and Leslie Evans imminently. The Inquiry has agreed extensions for witness statements where this was considered necessary and appropriate across all categories of Rule 9 requests issued.

Some are overdue, including the important statement from the Secretary of State for Scotland, from whom a partial response only has been received. Those in that position should be aware that the Inquiry has further powers to compel that statements are provided. The dates for the substantive hearings have been known for many months and the need for a timely and complete response has been stressed on numerous occasions, both formally and informally, in connection with the issuing of the requests. The Inquiry expects its requests to be complied with in short order.

Many of the deadlines set for the draft statements in the Inquiry’s Rule 9s fall in October and November 2023. Accordingly, save for exceptional circumstances and provided that witnesses comply with the deadlines set, Module 2A expects to have received all draft witness statements in sufficient time to enable disclosure of the vast majority of signed statements by December 2023.

As I indicated earlier, and whilst 7,221 documents have been disclosed across 11 separate tranches of material, Module 2A has a significant volume of documents left to review, assess for relevance and work through before they can be released to core participants. The largest of these providers are the Scottish Government and Public Health Scotland. The legal team is working swiftly to review this material and we wish to put on record our thanks to those material providers who are assisting with this important process and doing so at pace. There remains much to be done and materials will continue to be made available to core participants as quickly as possible.

Module 2 cross-modular disclosure.

The Inquiry is aware that some evidence received by Module 2 and some oral evidence provided at the Module 2 public hearings is likely to be relevant to Module 2A. In order to ensure that core participants have access to Module 2 material that is relevant to Module 2A, the Inquiry has been and is conducting a cross-modular review to identify material relevant to Module 2A in this category.

This has involved dedicated work from both the Module 2A solicitor and counsel teams. As a number of our core participants have been core participants in Module 2 and hence – Module 2 or Module 1 – and hence involved in the work of those prior modules of the Inquiry, they will have had access to this material already and indeed may be well placed to assist with drawing the Module 2A team’s attention to documents which they think ought to form part of Module 2A evidence proposals in due course.

The Inquiry intends to disclose any material considered relevant to Module 2A to core participants and indeed has already started to do so, including expert reports.

This will include witness statements, exhibits, and aspects of general disclosure that has been received by Module 2. However, the Inquiry will be limiting the disclosure of material to those documents that are strictly relevant, ie where a witness statement discusses issues relevant to Module 2A it will be disclosed to core participants. It follows that not all of the exhibits to such witness statements will be disclosed in Module 2A, they will only be disclosed if those exhibits are also considered relevant to the work of this module.

Five, list of issues, plans for the hearings in January 2024, and provisional list of witnesses.

The list of issues.

Core participants and those with an interest in the module will be aware that a provisional scope for the module was issued in the summer of 2022, alongside similar scopes for the associated Modules 2, 2B and 2C. As was trailed at the last preliminary hearing in March, a more detailed list of issues which we propose will be addressed in Module 2A was circulated to core participants on 12 May of this year. Core participants were asked to provide their comments on that list. We are grateful for the comments provided. Following consideration by the Module 2A team and the Chair, a revised list of issues was provided to core participants.

The list of issues thus attempts to frame with some clarity the matters which will ultimately be addressed in the report on matters which are covered by Module 2A. As in all matters, the investigative and inquisitive nature of the process in which we are involved means that the list should not be deemed to be closed. Our understanding of the scope increases on a daily basis, and so the possibility that further important issues will be identified remains open. But for practical purposes, the list needs to be given some element of finality with that caveat, and our list is now, in our view, in such a form. The list should be used, by those asked to contribute to the module, as a guide to what we intend to cover and thus on which their contribution will be both welcome and expected.

As was intimated at the last preliminary hearing in March, the Inquiry has sought to co-ordinate the scopes of each part of Module 2 so as to ensure fairness and consistency amongst the four nations of the United Kingdom. As was predicted by me at that time, our investigations have inevitably shown that the broad issues identified in the scopes differ as between each of the four parts of the module. The timeline in Module 2A thus differs from that in other modules. The issues to be examined are inevitably different due to the different structures involved in decision-making in and for Scotland, the different trajectory of the pandemic in Scotland, considerations arising from devolution, its different advisory arrangements and legislative and enforcement mechanisms. The objective throughout has been to achieve consistency to the extent that the facts will bear but also to respect that these differences demand to be respected.

Provisional witnesses.

The Inquiry has not made any final decisions about which witnesses will ultimately be required to give evidence at the Module 2A public hearings. The Inquiry is still awaiting receipt of further statements and so no final decisions will be made until the Inquiry has received the vast majority, although hopefully all, of the witness statements and considered representations from core participants.

However, the Module 2A team has written to some potential witnesses to give them notice of the dates of the public hearing and to ask them to provide any dates to avoid. In many cases, this notification has been or will be provided to the witness through their legal representative. It is possible that not all of those individuals who have been given advance notice will be called. It is also possible that some additional individuals may be notified of the Inquiry’s intention to call them as witnesses.

In writing, we have tried to err on the side of contacting potential witnesses, so as to minimise the chance of any difficulties with any individual witness arising.

The Module 2A team proposes to send out a provisional list of witnesses to core participants in November 2023, setting out the names of those who may be called to give oral evidence at the public hearing commencing on 16 January 2024.

We are grateful to Scottish Covid Bereaved for providing us with suggestions about possible witnesses, as we requested that they do. Having had an initial perusal of the list and focusing on government ministers, employees or advisers, the vast majority on their list have received Rule 9 requests and many are already in our thinking for the oral hearings in January.

Also, we are equally grateful to the Disabled People’s Organisations for providing some suggestions in their submission to the Inquiry of three such possible individuals. They will be considered. For the avoidance of doubt, the three individuals mentioned by the Disabled People’s Organisations have all provided draft written statements about the extent of their involvement in the matters with which we are concerned.

As I have said, core participants will be invited to make observations on the draft list in November.

For the avoidance of doubt, the current intention is that the representatives of certain Scottish impact organisations will be called upon to give oral evidence on their organisation’s behalf about the experiences of the organisation resulting from the pandemic and the individuals whom they represent, and, more particularly, about the role which those organisations played in trying to influence government decision-making.

As will be expected the focus of the hearings will be on the decisions of government, in particular the Scottish Government.

Key ministers will be called to give evidence, including the former First Minister, Nicola Sturgeon; the current First Minister, Humza Yousaf; the former Deputy First Minister, John Swinney; and the former Cabinet Secretary for Health and Sport until May 2021 Jeane Freeman; all of whom played pivotal roles in the Scottish Government’s pandemic response.

Hearing preparation.

As previously announced, the hearings in Module 2A will take place in Edinburgh and commence on 16 January 2024 at the Edinburgh International Conference Centre. Ahead of the hearings, Module 2A intends to share key documents which it has prepared with core participants relating to key thematic areas and which are proposed to be uncontroversial background to the matters being covered in the module. It is likely that these will include a chronology of key decisions and events, including restrictions, details of the structures involved in decision-making and advice, the identity of key individuals involved in decision-making, and the material provisions of legislation relevant to the Scottish pandemic response.

The intention of these will be that they will cover some of the uncontroversial background, allowing the hearings to focus on the key controversies and issues. It is intended that key aspects of the agreed uncontroversial background material will be set out by Counsel to the Inquiry in the opening statement. Core participants will be accorded the opportunity to make opening and closing statements at the hearings.

In addition, core participants will be invited to engage in the hearing preparation process which has been adopted by the Inquiry in Module 2. This will involve evidence proposals being produced and core participants being permitted to propose important documents and suggest potential lines of questioning for witnesses in connection with those evidence proposals which will be sent to them in advance of the hearings.

The intention in our module is to try to follow a regimented process, whereby a draft evidence proposal for a witness is circulated to core participants a certain period before the witness is due to give evidence, with clear indicators as to the date by which a response is expected. The same will apply to applications to contribute to questions to be asked by Counsel to the Inquiry or applications to ask questions, the opportunity for both being invited simultaneously.

Thus, the timescales for each witness in which a particular core participant might be interested will be clearly proscribed from the start, hopefully increasing certainty and providing a reasonable opportunity to contribute to the hearing preparation process.

We are aware of the potential issues that the Christmas break may have in this regard. Once the final list of witnesses has been decided upon, after consultation in November, and the order is fixed, consideration will be given to how best to time the process, given the need to balance the requirement to provide core participants with a reasonable opportunity to participate and the likely limitations of the festive season.

As a stepwise approach will be necessary, precise details of and timings of what we intend in that regard will continue to be provided to the core participants, either as necessary or in monthly update notes to be issued in due course.

Expert witnesses.

As set out in the previous monthly update notes, Module 2A, in conjunction with Modules 2, 2B and 2C, has issued instructions to the following experts who have provided or agreed to provide evidence to the Inquiry on matters relating to Scotland, which will be covered by Module 2A, as well as in connection with the subject matter of those other modules.

Professor Thomas Hale of Oxford University has reported on international data relating to the Covid-19 pandemic, in particular in analysing the effectiveness of decision-making in the UK and each of the devolved administrations, in comparison to other countries. This report has been disclosed to core participants in final form and the report was presented at the Module 2’s public hearing on 11 October.

Professor Ailsa Henderson from the University of Edinburgh has reported on the political structures for devolution within the UK and mechanisms for intergovernmental decision-making between the UK Government and the devolved administrations during the Covid-19 pandemic. Her report was disclosed to core participants in final form and the report was presented at the Module 2 public hearing on 9 October.

An expert report relating to political decision-making in the management of the pandemic in Scotland has also been commissioned by Module 2A from Professor Paul Cairney, professor of politics and public policy at the University of Stirling. This report is currently in draft form. A draft will be circulated to core participants for their comment in due course, following a similar process to the finalisation of other expert reports which have been commissioned previously by the Inquiry.

Expert reports of indirect relevance to the matters for consideration in Module 2A were also commissioned by Module 2 from Alex Thomas and Gavin Freeguard. Alex Thomas is from the Institute for Government, and was instructed to report on the decision-making structures of the UK Government in an emergency. Gavin Freeguard, former programme director and head of data and transparency at the Institute for Government, was instructed to report on the access to and use of data by the UK Government during the pandemic. Reports from these two experts have been disclosed to core participants in final form. Gavin Freeguard’s report was presented at the Module 2 public hearing on 10 October, and Alex Thomas’ report was presented on 13 October.

In your ruling of 9 March, my Lady, you directed that the Inquiry should obtain evidence from an expert or experts on the nature and degree of pre-pandemic structural racism. The ruling also makes clear that expert evidence should be obtained regarding pre-existing structural discrimination on other grounds. A number of experts were instructed in accordance with this ruling, including in relation to matters within the Module 2A scope relating to Scotland. Evidence from these experts has been adduced and led in Module 2, including from Professor James Nazroo, Professor Laia Bécares, Professor Tom Shakespeare, Professor Nicholas Watson, Dr Clare Wenham and Professor David Taylor-Robinson.

A further expert report has been disclosed to core participants prepared by Professor Chris Brightling, professor of respiratory medicine at the University of Leicester, and Dr Rachael Evans, in relation to Long Covid. These reports were presented at the Module 2 public hearing on

The current provisional intention of Module 2A is that it will not lead further evidence from the experts who have spoken about matters of general relevance across the UK, such as Professor Brightling or Dr Evans, or whose reports have specifically covered Module 2A in their remit, including Professor Henderson and Professor Hale, and the inequality experts, whose written and oral evidence already covers Scottish considerations.

The evidence which they have provided to the Inquiry remains available for consideration at the M2A hearings and/or in the final report on Module 2A matters. Issues arising from their evidence about governmental, including intergovernmental structures, NPIs, structural inequality and, by extension, inequality in political decision-making and outcomes, have been and will be canvassed at the Module 2A hearings with other witnesses. It is likely that I will cover key aspects of this evidence in my opening statement at the hearings in January.

The listening exercise, which we call Every Story Matters, commemoration and impact film.

On 28 July 2023, the Inquiry provided a further update on the ways in which an individual can share October. their experiences with the Inquiry. Every Story Matters was formally launched on 13 June 2023. The experiences and stories shared are helping the Inquiry to build a comprehensive picture of how the pandemic affected people’s lives across the UK, including in Scotland. An updated web forum was made available in late May, and to date thousands of responses have been submitted. The public information campaign to make people aware of Every Story Matters has been running on radio, billboards, in the press and digital advertising. The Inquiry has been working with charities and other organisations to promote Every Story Matters to seldom-heard voices. Campaign activity aimed at raising awareness of Every Story Matters has been undertaken. Every Story Matters will take place in Scotland predominantly from the beginning of January 2024 and will run until the end of the Module 2A hearings. A new contract has been awarded to M&C Saatchi to support the advertising of Every Story Matters, and a new research and analysis contract has been awarded to Ipsos to help the Inquiry deliver the next stage of this important project.

We have recently launched our programme of UK-wide Every Story Matters events, which will enable people across the UK to speak to Inquiry staff in person about their experiences of the pandemic. We will be holding events in Scotland in the New Year. A new contract will soon be announced to help the Inquiry deliver further community events.

In addition, an impact film will be shown on the first day of the public hearings for Module 2A to set the tone for the subsequent proceedings, grounding them in the lived experiences of individuals living in Scotland who suffered and continue to suffer hardship and loss as a result of the pandemic. The video will be played publicly at the substantive hearings at the beginning of the January 2024 sessions.

Co-operation with the Scottish Covid Inquiry.

The Scottish Covid Inquiry has seen some personnel changes in recent months in both the secretariat and legal teams. Introductory meetings have taken place to enable the relevant team members to get to know each other and to ensure that the Inquiries continue to enjoy a positive working relationship. Regular meetings take place between both the secretariat teams and the legal teams during which various topics of mutual interest are discussed, in particular the efforts being made to minimise duplication and avoid hearing clashes.

As part of the continued co-operation between the two Inquiries, a joint core participant meeting took place in person on 7 June 2023 in Edinburgh. Core participants from both Inquiries were invited and the event was well attended. At the meeting, core participants were able to raise any questions they had in light of the memorandum of understanding and discuss the practical realities of the two Inquiries running simultaneously.

The Inquiries continue to communicate to avoid hearing clashes and recently successfully agreed an approach to avoid a clash between this preliminary hearing and the impact hearings now being conducted by the Scottish Inquiry.

It should be noted that although the Inquiries will endeavour to do so, it may not always be possible to avoid all clashes over the duration of two such significant Inquiries. However, the CEO of the Scottish Inquiry has helpfully intimated that they will not have hearings in January 2024 so as to avoid a clash with the Module 2A hearings in this Inquiry which will take place at that time.

Most recently, the Inquiries have agreed an approach to help reduce the work required by common material providers in producing suggested redactions to both Inquiries and to ensure, where appropriate, consistency of redaction.

By the provision of a limited waiver of confidentiality, both Inquiries will permit material providers to share copies of redacted documents provided to the other Inquiry in addition to the clean copies requested, so as to demonstrate the redactions sought. It is hoped that this will reduce the work required by both the material providers and the Inquiries in processing redactions. Communications implementing this initiative will be sent out shortly.

In addition, the UK Inquiry also agreed to delay our advertising of Every Story Matters in Scotland while the Scottish Covid Inquiry was promoting its own Listening Exercise, Let’s Be Heard, to avoid both campaigns competing for information and potentially confusing those who wish to engage. The co-operation between these two important processes will, of course, continue.

Final comments.

I hope, my Lady, that this provides you with a useful analysis of the progress which has been made within the module since the last preliminary hearing in March of this year. I would like to reiterate the Inquiry’s thanks to those who have complied with the requests, their hard work, and that of those who represent them. It is appreciated. It is also necessary.

As the hearings approach, I hope that what I have had to say also provides adequate encouragement to those who have provided less fulsome co-operation with the Inquiry’s work than others to endeavour to do so in the remaining period in which we approach our evidential hearings in January. In the hope and expectation that that encouragement will achieve its aim, I hope and expect that further use of the Inquiry’s extensive powers to compel will not be necessary. If I were to be proven wrong in that hope, we would not hesitate to do so.

May I also pay tribute to the legal team with whom I am working, who the Scottish public can rest assured are doing all this they can to deliver the M2A hearings to the very best of their ability and with the fullest and deepest investigation into the management of the pandemic response in Scotland as we can achieve.

As Ms Mitchell KC said in her written submissions for this hearing, though in a slightly different context, those who lost their lives to Covid-19 deserve nothing less.

Lady Hallett: Indeed, Mr Dawson. Thank you very much indeed. Extremely helpful.

I think it’s probably best to take a break now, and then when I come back, I shall hear from Ms Mitchell KC and Mr Mitchell KC.

I shall be back at 11.55.

(11.40 am)

(A short break)

(11.55 am)

Lady Hallett: Mr Dawson.

Mr Dawson: If you will indulge me, my Lady, there is just one small point of clarification in relation to my earlier submissions.

It relates to Every Story Matters. Every Story Matters will of course run and be available for those who would like to contribute throughout the duration of the Inquiry. There will, however, be particular events and activity designed to promote engagement with it, which will take place in Scotland at around the time of the M2A hearings, which, as we know, will be taking place in January.

Lady Hallett: Thank you very much, Mr Dawson.

Ms Mitchell KC.