2. Submissions on Behalf of Scottish Covid Bereaved by Ms Mitchell KC

Ms Mitchell: My Lady, I’m obliged.

We’re grateful to Counsel to the Inquiry for the detailed note setting out the matters which are to be addressed at this hearing, and we note that Module 2A will look at making recommendations on the Scottish Government’s core political and administrative decision-making response to the Covid-19 pandemic between early January 2020 and April 2022.

As, of course, will be appreciated, this is of the utmost importance to those in the Scottish Covid Bereaved.

The Scottish Covid Bereaved firstly would say that we are very pleased that the substantive oral hearings will be taking place in Scotland, and we look forward to the commencement of those at the hearing place, the International Conference Centre, and we are happy that the Inquiry has taken the care to ensure the parity of service which is available south of the border is also being made available north of the border.

My Lady, I want to make a number of comments in relation to requests for gathering of documentary evidence from the Scottish Government, as you may not be surprised. We thank the Counsel to the Inquiry for his update on this, and we note the substantial number of Rule 9 requests, 140 or so, as well as 103 detailed Rule 9 requests to individuals, and, for those who have complied and answered fully, Scottish Covid Bereaved are very grateful.

We are, of course, however, most concerned and disappointed that the Inquiry has received witness statements that do not address all the matters raised in Rule 9 requests and that there have been delays in meeting the Rule 9 requests for documents and witness statements.

As CTI has set out in his note – sorry, Counsel to the Inquiry has set out in his note, these difficulties have the potential to disrupt the Inquiry’s process unless they are swiftly resolved.

Many of the parties involved in the delays have, of course, significant resources and have had more than due notice that these issues would be required to be addressed. As my Lady can only be all too aware of, we are now less than three months away from the start of Module 2A. It is of the utmost importance that the Inquiry’s requests are dealt with timeously to allow the Inquiry to ingather the material and importantly to disclose it to core participants well in advance of the hearings in January, in order that core participants have an opportunity to fully be involved in the process.

In the event that the matters requested by the Inquiry aren’t properly dealt with by the material providers and the witnesses, we welcome Counsel to the Inquiry’s proposal to explore the reasons why there are unanswered matters at further hearings.

However, we will go on to suggest that perhaps a stronger encouragement might be required in that regard.

We’re aware from the materials disclosed and the evidence thus far led in Module 2 of the critical importance of contemporary notes and messages from civil servants, special advisers and politicians in establishing how core political and administrative decisions were made and the reasons why those decision were made. The release of WhatsApps, social media, dairies, et cetera, have been critical in building a picture of the state of preparation, or rather the lack of it, for the pandemic, the impact of those decisions and the attitudes and conflicts that existed with the devolved administrations.

We are, as has been highlighted by Counsel to the Inquiry, astonished by the terms of the table that has been provided by the Scottish Government on its position about relevant information held by it in notebooks and WhatsApps. When I say “WhatsApps”, my Lady, I’m using the same short-term terminology as Counsel to the Inquiry to mean any forms of these social communications.

My Lady, we note what Counsel to the Inquiry has said with grave concern in relation to what has now been told. The Scottish Covid Bereaved found it difficult to accept that most senior politicians in Scotland, making crucial decisions affecting the lives of everyone in the country, were able to attend numerous meetings, have sight of scientific and medical papers and take decisions without apparently taking any notes to assist them in their decision-making process. We now hear that 57 notebooks have been recovered and there are more to come. It was difficult to understand how any politician could provide an accurate account several years removed of being in rooms, who was present, the relationships involved and how decisions were arrived at, without having any contemporaneous notes to assist them. Now, we find that such notes do exist.

We would ask if the Inquiry would ask of the civil servants who supported ministers as well whether they have any records of any WhatsApp groups or any electronic recording of communications with ministers. We would also ask if the Inquiry can ascertain if there was any official or unofficial policy of deleting WhatsApps.

My Lady will recall, also in relation to Module 2, that Mr Boris Johnson’s electronic communication was recovered by experts. Might that be something that can be done here for messages which have auto-delete? We would be grateful if the Inquiry could confirm these – we would be grateful if the Inquiry could consider these requests, and take steps accordingly, if necessary.

We noted with some surprise the table that said there were no relevant WhatsApps, not only because we thought that was inherently unlikely but also because, on 4 June 2023, on the BBC Scotland’s Sunday Politics programme, the former health minister Jeane Freeman was asked about a headline that raised the fact that Aamer Anwar & Company had, in fact, called for WhatsApp messages and other materials to be released. Ms Freeman stated:

“I’m sorry to say, but the Sunday Mail is a non-story. Nobody’s asked for these WhatsApps yet for the Scottish Inquiry, so therefore nobody’s one’s refused. So the idea of demanding that you get something that no one’s yet asked for and no one’s yet refused to give is not a story as far as I’m concerned.”

From the above exchange, we concluded that WhatsApp messages remained in existence, perhaps at least for Ms Freeman, and now it seems that conclusion was well placed. At the preliminary hearing in London on 1 March, we stated that anything less than full disclosure would be considered 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, and, as has already been foreshadowed by my learned friend Mr Dawson KC, those who lost their lives to Covid-19 deserve nothing less.

We note that the ICO office has already warned government officials that deleting messages that could relate to investigations into alleged rule breaking parties at Number 10 Downing Street and other departments would be a criminal offence. The Scottish Covid Bereaved believe it’s an important principle of government transparency and accountability that official records are kept of key actions and decisions, that relevant information that exists in private correspondence channels of public authorities should be available and included in responses to information requests received.

The Freedom of Information Act requires a code of practice providing a framework for public authorities to manage information and records and comply with their obligations under Freedom of Information and other relevant legislation, such as the Public Records Act 1958. The code makes it clear that public bodies should keep information if it needs it for reference or when there may be a public inquiry.

As touched on before, we are extremely disappointed by the apparent failure by politicians and civil servants to retain messages and the seemingly widespread use of the auto-delete function. From the CTI’s note, it appears that the majority of the relevant messages have not been retained by individuals.

Module 2A will cover decision-making between January 2020 and April 2022. On 24 August 2021, the Scottish Government announced plans for the Scottish Covid Inquiry. It ought to have been obvious to the politicians and civil servants from that date, if not of course earlier, that their contemporaneous messages may be of relevance to a public inquiry. It is requested that the Inquiry seek to establish with these witnesses what, if any, steps they took after this date to stop the use of auto-delete function on their messaging services and what, if any, steps they took where there was a change of mobile phone to ensure that all relevant messages were retained.

While we appreciate there’s only a short time remaining before the commencement of the substantive hearings, we would be grateful if the Inquiry could take all possible steps to retrieve what we consider may be crucial messages.

Finally, on this point, we would ask that the Scottish Government be asked to provide a formal response as to how the table drawn up and supplied to the Inquiry and core participants told us things which were incorrect. It was clear that what was given to us was incomplete, that said, in relation to critical witnesses, that they had no notes and no WhatsApps, and we now know that this is not the case.

This does not inspire confidence in the Scottish Government’s approach to its full co-operation with this Inquiry. Saying “We are co-operating” is one thing, doing it is quite another, and we are pleased at the robust attitude that is being displayed by Counsel to the Inquiry in his approach to obtaining all relevant information held in any way.

We note the suggestion of Counsel to the Inquiry that Rule 21 notices may be served. Given the history of disclosure to date, my Lady, we ask that no further time is given to the Scottish Government and that such notices are served at the earliest opportunity.

The Rule 9 process adopted to date has left us with late, incomplete and wrong information being provided to the Inquiry and to core participants. A section 21 notice, with its failure to comply without reasonable excuse being a criminal offence which is punishable by fine and imprisonment, is likely to focus minds in respect of time, and encourage the most thorough process of it complying with requests. Then we can have confidence that disclosure has been properly made.

Moving on briefly, my Lady, to legal professional privilege.

We note the terms of Counsel to the Inquiry’s note that 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 has been redacted from documents by reason of LPP or pursuant to the Law Officers’ Convention.

As Counsel to the Inquiry has set out in their note, and to the Scottish Government, that in order for the Inquiry to understand to the fullest extent possible all of the considerations which were taken into account by ministers and officials, it needs to see all advice provided to them of any description, including any legal advice that they were given.

Were the legal advice to be redacted, the Inquiry can only see part of the story and may miss important material that might help them explain and understand the decisions that were taken.

The Scottish Covid Bereaved support the Inquiry’s attempts to obtain the fullest material to allow it to carry out its functions. We are aware from other modules that the Inquiry can and will redact sensitive and irrelevant information before disclosing it to core participants. It is vital that the Inquiry obtain this material from the Scottish Government. No government or politician, whether based in Westminster or Holyrood, should seek to hide behind LPP to stop the public finding out what happened in the corridors of power during the pandemic.

We support the call made by Counsel to the Inquiry to waive legal professional privilege. The public servants who made decisions affecting every person in this country ought to be as transparent as possible to allow the essential work of this Inquiry to take place.

My Lady, moving on to list of issues and provisional list of witnesses.

The Counsel to the Inquiry has now gone into this in some detail, and I don’t need to rehearse matters for you, my Lady. We were delighted to meet with Counsel to the Inquiry and provide a list of issues and also a very full witness list of whom the Scottish Covid Bereaved thought may be helpful to the Inquiry in obtaining the information it needed to know.

We are pleased to hear that many of the names that had been given were ones already being considered by the Inquiry, and we hope that those names that we have given that hadn’t already been flagged up will now be given careful consideration. We appreciate, of course, that not – due to constraints of time – every person can be called to give evidence, but there is of course the opportunity of obtaining witness statements from them in writing rather than orally.

Moving on to a discrete issue about witnesses, namely that of expert witnesses, the Scottish Covid Bereaved are aware that we have a number of expert witnesses in relation to Module 2, and we wish to stress no issue is being taken with the expertise of these witnesses to date. However, we do note that in some reports the information is based on data and experiences from England.

We would be grateful if the Inquiry could confirm that, should these witnesses give evidence in Module 2A, they will specifically focus on the situation as it exists in Scotland and be asked, where necessary, to explain if the data that they are using comes from Scotland or the UK.

My Lady, we make this request now simply to avoid having to make separate requests individually if further expert reports are going to be given.

Co-operation with the Scottish Covid Inquiry.

Firstly, we note that, as a result of the Scottish Covid Inquiry not sitting today, I am able to present this submission to the court, and we’re obliged to both the Scottish Covid Inquiry and the UK Covid Inquiry for coming to this accommodation. We note that co-operation exists between the two Inquiries and the efforts to avoid not only clashes of time but duplication of work.

We note that the Inquiry will endeavour to avoid hearing clashes, but it may not be possible to avoid all clashes. The Scottish Covid Bereaved do appreciate that, and they also appreciate that they and those representing other bereaved families in the UK are being placed front and centre of this Inquiry.

The Scottish Covid Bereaved and their representatives wish to hear the evidence of both Inquiries, of course, and, where it’s necessary for the hearings to take place at the same time, members of the Scottish Covid Bereaved and their representatives will require, as it were, to play catch-up using recordings of hearings. That can’t be said to be an approach which places families front and centre, and we are grateful that every possible effort is being made to avoid hearing clashes.

In conclusion, my Lady, the evidence thus far at the UK Inquiry raises serious questions as to the UK and Scottish Government’s preparedness for a pandemic; the extent to which the machinery of UK Government during the critical early stages of the pandemic allowed for the involvement of the Scottish Government; whether the data reflected the four nations of the UK or just England; whether attendance at crucial meetings by Scottish Government ministers, civil servants and scientists were simply a charade; and whether COBR meetings were actually what has been described as a Potemkin village, where the devolved administrations were operating under the false belief that they were playing a key role in the process but real key decisions were being taken elsewhere.

This makes it even more important to understand what decisions were being taken in Scotland, by who, and on the basis of what science and what data. It is imperative that, as the Inquiry turns its gaze northwards, the Scottish Government, its ministers and its civil servants provide all possible assistance to the Inquiry. Only with such assistance will the Inquiry be able to provide the answers that the Scottish Covid Bereaved and the people of Scotland need and deserve.

Those are the submissions on behalf of the Scottish Covid Bereaved.

Lady Hallett: Thank you very much indeed, Ms Mitchell. As ever, you make some very valid points.

I shall now turn to Mr Mitchell KC, to see how he answers the points made by Ms Mitchell and Mr Dawson.