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

Ms Mitchell: I am Claire Mitchell King’s Counsel and, along with my colleagues Kevin McCaffery and Kevin Henry, I am instructed by Aamer Anwar & Company solicitors on behalf of the Scottish Covid Bereaved in both the UK and Scottish public inquiries.

In Module 1 we learned that as a result of the policy of austerity, the vulnerable became more vulnerable, the poor, poorer, the sick, sicker. Life expectancy declined. The NHS was chronically underfunded. Added to this, preparations for Brexit took place, replacing any work on pandemic planning, leaving the UK virtually defenceless.

Despite the benefit of time, of watching in real time the wave of Covid sweep towards the UK shores, the politicians, and in particular the then Prime Minister Boris Johnson, prevaricated, trolleyed, flip-flopped in the deadly days of delay during which action ought to have been taken as the disease quickly multiplied and overtook the UK.

So far in Module 2 the Scottish Covid Bereaved has sought to understand the UK Government’s initial response, to find out about decision-making by our central government, the politicians, civil servants, special advisers. Repeatedly politicians, and it is politicians in particular, asked to offer their condolences to the bereaved, they expressed their views on how important this Inquiry was, yet when it came to answering questions there were repeated instances of obfuscation.

The view taken on the evidence is a matter for the Chair alone, but the view of the Scottish Covid Bereaved is that when presented with evidence or asked to comment on issues not in their favour, explanations were tendered that would strain of belief of even the most gullible.

The then Prime Minister Boris Johnson’s inability to act decisively was repackaged with a philosophical spin. His lack of ability to harness what he considered to be the greatest tool in the pandemic, that of communication, was not reflected on with any form of acceptance, despite there being very many significant examples flagged up by an independent expert of his and his colleagues’ inability to properly define what rules were to be followed by whom.

In evidence, he seized upon the idea that in a future pandemic any Prime Minister should speak to the whole of the UK as if it was a revelatory idea, rather than the actual job he should have been carrying out. Finally, both he and Mr Gove seemed interested in exploring a topic, the source of the pandemic, which was not within the scope of the Inquiry, terms indeed which Mr Johnson had set. A red herring which the press ate up.

The toxic misogynistic and macho atmosphere at the centre of government was presented as an environment to get the best out of people, where there appeared to be no recognition of the fact that their characterisation was not shared by the senior civil servants working in it, and that this environment sidelined and excluded women and, perhaps more specifically importantly for government, side-stepped the procedural safeguards of collective decision-making in Cabinet.

Our present Prime Minister, Mr Rishi Sunak, was able to remember very little of some very important decisions and conversations that took place when he was present, yet when on more solid ground was able to point to the detail of evidence which supported his position, his recollections were clear.

The reason for highlighting the foregoing, my Lady, is that in this present module the Scottish Covid Bereaved wish to say loudly and clearly to the politicians in Scotland that they want better. On behalf of their relatives, they deserve better. They want politicians to answer questions put to them directly, to reflect upon their time during the pandemic, and they want them to wholly engage in the process of finding out what happened, putting politics and political careers aside. Quite frankly, the work of this Inquiry is more important.

Considered and careful reflection on what went on and how things could have been done better may literally save lives in the next pandemic.

We would ask that politicians in particular remember this when they come to give evidence.

In Module 2, some of the best evidence, the most unguarded contemporaneous evidence, came from informal methods of communication such as WhatsApps. The sorry history of the difficulty that this Inquiry has had obtaining those documents from the Scottish Government is cause for considerable concern to the Scottish Covid Bereaved. Media reports have suggested that senior figures in the pandemic decision-making, such as Nicola Sturgeon and Jason Leitch, have failed to retain messages. If these reports are correct, the Scottish Covid Bereaved hope that, whatever evidence may be gleaned from surviving WhatsApps, nothing of significance has been lost as a result of this apparently wilful deletion of messages.

The Scottish Covid Bereaved are further aware from media reports that it may be suggested that as final decisions were not taken via WhatsApp, there was no need to retain these important messages. They look forward to hearing how politicians and civil servants attempt to justify this position. Are the people of Scotland to believe that the Scottish Government placed no reliance on informal messaging services which were routinely used by individuals and businesses throughout the pandemic? As the Inquiry will no doubt hear, in March and April 2021, promises were made not only to the Scottish Covid Bereaved but the people of Scotland, in the manifesto on which the members of the Scottish Government stood, that there would be a public inquiry into the handling of the pandemic. It ought to have been obvious to politicians, advisers and civil servants from at least then, if not earlier, that evidence of contemporaneous discussions in relation to the pandemic response would be of vital importance to the subsequent Inquiry. Were no steps taken to secure these messages? Did the deletion of messages continue after spring 2021?

The Scottish Covid Bereaved listened with great concern as Counsel to the Inquiry set out at the previous preliminary hearing the difficulties faced by the Inquiry in securing evidence from the Scottish Government. It is hoped that this is not indicative of the approach to be taken at the hearings.

As noted, one of the recommendations suggested by the group at the end of Module 2 is the retention of all messages in whatever form that relate to the business of government. It’s hoped that this is a lesson which has not been learned too late.

As the Inquiry is aware, the Scottish Covid Bereaved represent just some of those who lost their loved ones in Scotland. As of June last year there were more than 17,000 deaths in Scotland where Covid-19 was mentioned on the death certificate. Each one of those deaths is a tragedy. While witnesses in this module may point to opinion polling during the pandemic favourably contrasting the Scottish Government’s communication and strategy with that of the UK Government, positive poll numbers are no consolation to the bereaved. If Bute House was not as chaotic as Downing Street, if the Scottish Government’s public health messaging was to be preferred to that of the UK, if at no point were decisions taken in Scotland for political reasons, why did so many lose their lives in Scotland? Did our politicians fail to protect some of the most vulnerable in our society, such as those in care homes?

Of course it’s been suggested that the then First Minister, Nicola Sturgeon, and other Scottish politicians, were playing politics rather than properly engaging in the decision-making to save lives. Was this projection by the UK politicians as to their own behaviour, or is there truth in this? Were cancellations of mass gatherings totemic? Were decisions taken to lift lockdown at a different time from England just for the sake of doing things differently or a reflection of a different stage of the progress of the virus? Was a decision to change face masks in school policy another example of taking a separate decision from the rest of the UK? Was the Scottish Government sidelined, excluded from crucial decision-making? Were meetings of COBR a sham to be nice to the devolved administrations? Was the democratic process in Scotland undermined by the UK Government?

Equally, were politicians happy to accentuate political and constitutional differences to distract from similar policies either side of the border? Was valuable time and valuable resource wasted in pursuing futile elimination strategy?

The Scottish Covid Bereaved hope these questions and of course the very many questions posed by my learned friend this morning will be answered in full. As the Chair knows, questions about decisions taken in relation to Covid contracted in hospital and care home deaths are of the utmost interest to those in the Scottish Covid Bereaved. It is of course acknowledged and must be remembered that further additional evidence will be laid about those in later modules.

The SCB would also like to take the opportunity to highlight what was said in the closing speech in Module 2 regarding the press. The press, as the fourth estate, has an important part to play in acting as a legitimate political safeguard, performing a watchdog function over the branches of government. The SCB welcomes the part the press has to play in doing so. However, there have been calculated attempts to undermine the work of this Inquiry in some sections of the media, including not only attacks on the work of the Inquiry but personal attacks on those involved.

It is clear that such attacks have had no effect, but let the Scottish Covid Bereaved be clear: any attack on the work of the UK Covid Inquiry is an attack on the bereaved, who want the work of this Inquiry to be a legacy for those that they loved and lost.

Finally, we would like to place on record the assistance and forbearance of the Inquiry team, and in particular Mr Dawson KC, who, in particular in the last few days as we’ve had discussions, has made every effort to ensure that he has considered a number of specific issues that the Scottish Covid Bereaved would like to raise.

These are the opening submissions for Module 2A on behalf of the Scottish Covid Bereaved.

Lady Hallett: Thank you very much indeed, Ms Mitchell, very grateful.

Mr Freeman, Danny Friedman KC.