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

Ms Mitchell: I’m obliged, my Lady. I appear on behalf of the Scottish Covid Bereaved, as instructed by the Inquiries team at Aamer Anwar & Company.

At the outset of this module, Counsel to the Inquiry set out in stark terms the devastating impact of the pandemic on the people of Scotland, at this time, with the total number of Covid deaths reported in Scotland up to 31 March 2022 being 14,130. While it may be tempting for some to think that the days of Covid deaths are behind us, in the week ending 21 January 2024 there were 23 Covid deaths in Scotland. Many more, some with us here today, are suffering from the effects of Long Covid.

Whilst during the course of the pandemic some wanted “a good old fashioned rammy so they could think about something other than sick people”, the bereaved did not have that luxury. For those whose loved ones died in hospitals, in care homes or in prison, alone or surrounded by strangers in face masks and gowns, all they now have are their thoughts and their memories of their loved ones. They do not wish them to be just another statistic or another sick person. For the bereaved of course they were far more: mum, dad, partner, husband, wife, brother, sister, son, daughter.

It was in memory of those loved ones that the bereaved campaigned for a public inquiry, because they wanted answers. They did not campaign for this Inquiry to discuss WhatsApps and the minutiae of Scottish Government guidelines. It is a matter of deep regret for the bereaved that these important matters have been, through no fault of the Inquiry, overshadowed by the absence of WhatsApps.

Some of the best evidence in Module 2 came from informal communications, unguarded, contemporaneous messages which helped provide answers to the questions of what was happening in Whitehall and why. The actions of Nicola Sturgeon, Liz Lloyd, Jason Leitch, John Swinney and others have robbed the bereaved of those contemporaneous messages, and with them answers to questions.

The Scottish Covid Bereaved, like many Scots, tuned in almost religiously to Nicola Sturgeon’s daily Covid briefings. During the pandemic, many of us saw more of the First Minister and Professor Leitch than we did of our own families.

It was at one of these daily briefings that Nicola Sturgeon was asked if she could guarantee to the bereaved that she would disclose private emails and WhatsApps, that nothing would be off limits to a public inquiry. The SCB took her at her word.

The Scottish Covid Bereaved say that when Nicola Sturgeon told the Scottish public that she was prepared to give an assurance she would disclose messages that she knew she had deleted, this was not just a failing to be clear in an answer. It ought to have been made clear that she and other Scottish ministers routinely deleted important information relating to the pandemic, and that it was beyond the reach of Freedom of Information legislation and public inquiries.

My Lady, in concluding in relation to this issue, it’s hoped that those within the Scottish Government reflect on the fact that each minute this Inquiry spent at these hearings – very properly, of course – addressing the deletion of WhatsApp messages was a minute that could not have been spent exploring substantive matters, a minute that brought the bereaved no closer to the answers they seek.

These past three weeks have revealed, however much the Scottish Government may seek to differentiate itself from the UK Government, that many of the same mistakes were made in Edinburgh as were made in London: a failure to learn lessons from previous outbreaks; a failure to have a proper pandemic plan in place; a failure to have a proper testing regime, if indeed any ability to test; a failure to lock down in time; a failure to recognise the specific impact on health and social care sector; a failure to protect the most vulnerable; and a failure to properly consider the effect of their decisions taken on loved ones, for example, those unable to visit loved ones in hospital, and of course the effect of the transfer of vulnerable people into care homes.

In our closing submissions to the Inquiry in Module 2, the Scottish Covid Bereaved described the UK Government’s response from the period of 13 March 2020 to the issue of the stay-at-home order as being ten deadly days of delay. It was with disbelief that the Scottish Covid Bereaved learned that the dither and delay at the heart of the Scottish Government started long before then.

On 21 January 2020 Mark Woolhouse, professor of infectious disease epidemiology, contacted Dr Catherine Calderwood, the Scottish Government’s Chief Medical Officer. Professor Woolhouse was concerned about the emergence of a new virus. From round about January 10, 2020, he thought it was very likely that we would have a pandemic and thought the Scottish Government needed to quickly engage with it. Professor Woolhouse gave evidence of the warnings he gave to Dr Calderwood that the virus was completely different magnitude of the problem in swine flu, the risk of mortality among vulnerable patients, epidemiological modelling predicted at least half of the population would become infected, the gross mortality rate would triple and the health system would become completely overwhelmed.

On 26 January 2020 Professor Woolhouse sent a further email to Dr Calderwood setting out the non-pharmaceutical interventions required to deal with the situation. Despite these credible and dire warnings, there was a lack of urgency on the part of the Scottish Government. So frustrated was Professor Woolhouse that he had to email Dame Sally Davies, the UK Government’s former CMO, and ask her to get Dr Calderwood in effect to listen to him.

We can only wonder how many lives could have been saved if Professor Woolhouse’s warnings were taken seriously at the time.

The evidence led before the Inquiry has left the Scottish Covid Bereaved with a great many questions played(sic) about the part of Dr Calderwood and the information provided as the main conduit, as she was described, of information on medical matters to the then First Minister. This module is not whole without her evidence, and the SCB look forward to hearing her evidence in due course.

The Inquiry will have to consider whether the Scottish Government had the right advisers. During the pandemic, it was clear to anyone who turned on the TV or radio the extent to which First Minister was reliant upon the advice of the CMOs, Professor Smith and Professor Leitch. While these advisers had experience in public health, their backgrounds were in obstetrics, general practice and dentistry. Were they the right experts to help a government fight a deadly disease such as Covid-19?

From the evidence led, it appears that at least one expert did have direct access to the First Minister, Professor Sridhar. The SCBA thanked her for selflessly placing herself in the front line against the pandemic.

The Inquiry must turn its mind and consider whether time was spent wasted in pursuit of what may have been an unachievable strategy of zero Covid.

The deletion of WhatsApps as aforementioned are symptomatic of a wider culture within the Scottish Government, and that is one of secrecy. Whether in relation to the Nike conference or rugby internationals, the Scottish Government’s first instinct was to keep information from the people of Scotland. The Scottish Covid Bereaved will never know how and why decisions were made in relation to gold command meetings, they went unminuted, with no record of the discussions that took place at those meetings.

While the First Minister thought that there was undoubtedly a learning point for the Scottish Government, it ought have been obvious to ministers and civil servants that those meetings required to be minuted. The Scottish Covid Bereaved are left with simply a question: what is trying to be hidden?

Civil servants boasted of plausible deniability and putting messages beyond the reach of FOIs. The National Clinical Director gave the now First Minister a how-to guide on breaking the rules that the rest of us had to follow. The Scottish Government moved from a Cabinet system to a presidential one where decisions were being taken by a small number of people and rubber stamped.

This module deals with government but it did raise and touch on other issues, my Lady, and of course the Scottish Covid Bereaved are aware that further modules will deal with matters particularly in relation to the evidence of Dr Macaskill. But questions obviously posed and what the bereaved are keen to hear about are: were the risks of placing positive patients into care homes not obvious? Why was so little thought given to allowing families to be with their loved ones in their dying moments? In some instances, weeks went by where people went into hospitals, yet loved ones were denied access.

A question here is indeed whether or not their human rights, their right to family life, were breached, and my Lady may know that that’s already been considered elsewhere.

Rather than waiting for Downing Street to act, why was no thought given to how to use Scottish Parliament’s public health powers to protect our borders and slow the spread of the virus?

The Scottish Covid Bereaved will develop what has been said in our written submissions.

It’s clear to the Scottish Covid Bereaved that the evidence led has demonstrated that the Scottish Government was too slow to act, that despite their political and constitutional differences they fell into the slipstream of the UK Government and took clear steps to hide information from the people of Scotland.

The Scottish Covid Bereaved are not interested in arguments in relation to independence or unionism. They’re interested in finding out what decisions were taken in relation to their loved ones and whether different decisions ought to have been taken and what can be learned for future generations.

My Lady, the Scottish Covid Bereaved are tired of being in the middle of a political debate. They fight for those who lost their lives to Covid.

The Scottish Covid Bereaved hope the legacy of this Inquiry is that the Scottish Government will have in place a proper plan for dealing with the next pandemic when it arrives, and it is in that hope, my Lady, that the Scottish Covid Bereaved suggest a number of recommendations that relate to governance and infrastructure.

Now, my Lady, I’m going to mention a few of these, but it’s not to be taken in any order of preference or in any way a comprehensive list. The list goes on, my Lady, a lot longer than the 20 minutes allow, but I’ll give my Lady a few examples of things that have come forward in the evidence.

For example, as a result of the evidence of Professor Paul Cairney about the dissatisfaction of Audit Scotland, it must be possible to establish a system to account for funds from the UK Government spent by the Scottish Government. It ought not to be something that Audit Scotland indicates that they have difficulty following, so there must be some ability to put something in place.

In respect of what was said by Mr Macaskill, it appears that an urgent review of the systems, processes and governance of care homes in Scotland are required. Are they fit for purpose?

It of course would come as no surprise to my Lady that one of the suggestions is that Scotland has to have its own testing facility, maintained and ready to deal with scaling up, to have a draft written strategy on testing. My Lady will recall the somewhat surprising evidence that was described as an informal policy, and I think my Lady interjected to say that perhaps there hadn’t been one, that an informal unwritten policy was in fact not fit for purpose.

Of course, as said before, one of the recommendations the Scottish Covid Bereaved are keen to see implemented is a change to Scottish Government policy requiring retention of any electronic communications which relate to the business of government; and also for consideration to be given to change the FOI policies that are currently in place, because, as we heard in evidence, those are only required of civil servants, and it meant that each individual minister – with regards to whether or not they were obtempering guidance or not – decided whether to delete or not to delete their messages.

As suggested by expert witnesses McMenamin and Phin, it is suggested that the Scottish Government should consider having an overarching health protection structure to be put in place.

Further, as my Lady has heard, flowing through this and Module 2, recommendations in relation to the improvement of data, and particularly data as it applies to healthcare in relation to adult social care and care homes where there seemed to be a particular lack of information.

Sheila Rowan suggested – in perhaps more eloquent terms than we did at the end of Module 2 – that there should be a cross referencing of expertise. I think we called it, as lawyers sometimes do, hot tubbing; having experts from different areas come together to see how their ideas, if implemented, would affect other areas. She suggested a chief advisers group to get an overview and a crossover of policies to improve knowledge across the board, for there to be the CMO, the CSA, the Chief Scientist, the Chief Economist and Statistician, all to liaise together in a one body so that decisions taken could be tested on all those fronts rather than individual decisions being taken; and that, my Lady, could only assist in circumstances where politicians are being asked to balance harms if they have the experts to together looking at those matters and coming, if not with a concluded view, to have those different views expressed.

Another interesting feature of Scottish legislation and something the Scottish Covid Bereaved consider should be worthy of recommendations of review is a review of the made affirmative procedure, to consider a restriction on this to ensure that legislature that cuts across human rights can’t be made without parliamentary oversight and can’t be rolled over to avoid challenge.

Staying on the issue of legislation, my Lady, my Lady heard the evidence of the expert who agreed, I think, with my Lady’s propositions about the unintelligibility of legislation in respect of what people should do to not fall foul of the criminal law. Of course criminal law has to be Article 7 compliant; in a pandemic, of all times, people ought to be certain that they know what the law is and what behaviour is likely to breach it. Draft legislation could be drawn up in non-pandemic times and adapted, rather than have rushed legislation which was not comprehensible.

My Lady, further, the Scottish Covid Bereaved consider that a body should be set up, as with the UK Government, to oversee special advisers. The Scottish Covid Bereaved consider that the special advisers code is not sufficient for purpose, my Lady, to ensure that there is proper consideration given to the oversight of special advisers in the Scottish Government.

The Scottish Covid Bereaved consider that there ought to be a review of the Scottish Government personality. Its secrecy, my Lady, is out of step with what the public want. The public want transparency in government, and the FOI jokes show a government unwilling to be scrutinised; and it is clear, my Lady, with difficulties even on obtaining disclosure, that there must be a better focus placed on allowing people to understand the detail of what goes on. These are meetings on behalf of the Scottish people, for the Scottish people, and there’s no reason that there should be any secrecy in that regard.

My Lady, I’ll conclude, just within time, with two further suggestions.

Consideration of what was being described as pandemic budgeting agreement.

My Lady will have heard the evidence of Kate Forbes and the efforts that were made to assist in the problems of pandemic budgeting. It’s respectfully submitted that if such a body is put up in place, at this time, or a budgeting agreement is put in place to allow the flow of money in an easier way, that would be one of the most basic ways in which issues that don’t need to be problematic in a pandemic and don’t need to draw focus of time and effort could be dealt with in advance, in order that the focus can be placed simply on the virus.

Kate Forbes also mentioned that, in order to provide a proper system of governance, I suppose, it means proper investment in infrastructure of government, and she was clear that this should be done before the next pandemic and we shouldn’t be on the hoof trying to make up new systems when they were there.

Before the Scottish Covid Bereaved finalise our submissions in writing to you, my Lady, we wish to ensure that we’ve considered all the disclosure and we have also listened carefully today to the views expressed by other core participants.

My Lady, the Scottish Covid Bereaved are obliged to the Inquiry for coming to Scotland. Indeed, I think members of the Scottish Covid Bereaved have written on their own to express their thanks, not only, my Lady, to those at front of house, as it were, but those behind the scenes who have assisted what has been at times a very difficult experience for them in coming to hear evidence.

I conclude simply by saying that those are the submissions at this stage on behalf of the Scottish Covid Bereaved.

Lady Hallett: Thank you very much indeed, Ms Mitchell, and indeed we have received messages, and they’ve been very welcome and very touching. We’re very grateful.

Mr Friedman.