Today the UK Covid-19 Inquiry held a preliminary hearing on Module 2A, which will examine the Scottish Government’s core political and administrative decision-making in response to the pandemic between January 2020 – April 2022.

The full (albeit provisional) outline of the scope of Module 2A can be found here.

Jamie Dawson KC (Lead Counsel to the Inquiry for Module 2A) set out some practical steps on how this element of the Inquiry will proceed, as well as providing the Inquiry with some context regarding the impact of the Covid-19 pandemic in Scotland specifically.

The Inquiry then heard from representatives for four of the seven Core Participants in this module regarding areas of particular interest or concern.

We have summarised below some of the key points from the hearing.

Cooperation with the Scottish Inquiry

A portion of today’s preliminary hearing was given over to discussing how the UK Inquiry will cooperate with the Scottish Covid-19 Inquiry in relation to matters affecting Scotland. There will be significant areas of overlap between the remits of, and evidence to be examined by, both inquiries, so the Chair and Counsel for the Inquiry provided some further reassurance as to how this will be managed.

Inquiry Chair, Baroness Heather Hallett DBE, emphasised the need for the two inquiries to “work together” so that the Scottish people can be clear on who to turn to regarding the issues which concern them.  The Chair also emphasised the importance of minimising duplication of effort and resources and to lighten the burden on those entities subject to document requests (which can be substantial and which will begin to be issued shortly).

To that effect, the Chair is due to meet shortly with the new Chair of the Scottish Covid Inquiry, Lord Brailsford.  Mr Dawson KC advised that a Memorandum of Understanding between the Scottish and UK inquiries has already been drafted and is the process of being finalised. This MoU will set out further detail on how the two inquiries will collaborate effectively while each fulfilling their distinct and independent remits.  This document will be made public once finalised.

Scope

There is a huge area of ground to be covered in Module 2A. Therefore, the relevant issues to be investigated will be grouped into further sub-modules.  The scope and content of these sub-modules is not yet fixed, which drew criticism from some Core Participants.  This will continue to evolve over the coming months, informed partly by the emerging evidence gathered as a result of document requests and the listening exercise.

Listening exercise

Mr Dawson KC reiterated that the Inquiry aims to put the views and experiences of the public at its heart.  The Inquiry will roll out a listening exercise later this year, which will be open to anyone who suffered a bereavement or other hardship or loss as a result of the pandemic.  While individual deaths or cases of harm cannot be examined at length by the Inquiry, Mr Dawson KC recognised that there is a cathartic purpose in providing these accounts, as well as a practical purpose, in that personal accounts will inform the Inquiry’s understanding of the impact of the pandemic and in turn their response.

The listening exercise will be conducted by Ipsos and M&C Saatchi, who will prepare summary reports of the evidence gathered.  These reports can inform the direction of the Inquiry (including whether any amendments to its scope are required) and will be disclosed to Core Participants for their views.

Core Participants

The seven Core Participants to the Inquiry are:

• Scottish Covid Bereaved
• Scottish Ministers
• Public Health Scotland
• NHS National Services Scotland
• National Police Chief’s Council
• Trades Union Congress
• Scottish Care

As Core Participants, these bodies enjoy certain enhanced rights of engagement with the Inquiry, such as the right to see relevant evidence, to provide evidence by way of submissions, to suggest lines of questioning and to question witnesses during hearings.

During the preliminary hearing, Mr Dawson KC stressed the Inquiry’s commitment to fostering a collaborative approach with the Core Participants and maintaining clear lines of communication at all levels.

It is worth noting that additional parties who have not been designated as Core Participants may still be required to provide evidence or documents, and the Inquiry intends to issue some requests for documents to some of these bodies within the next few weeks.

Evidence requests

For the sake of efficiency, the Inquiry team intends to initially target its document requests (known as “Rule 9 Requests”) to bodies which hold large number of documents, with the Scottish Government looking to be first on the list.

Mr Dawson KC was frank in stating that these requests will likely be lengthy and wide-ranging.  To the extent that certain documents have already been (or will be) collated in response to requests from the Scottish Covid-19 Inquiry, the UK Covid-19 Inquiry expects that efficiencies can be made to avoid duplication of effort.  It expects that the Scottish Government should be able to produce a tranche of documents before the end of this year.

Those providing documents to the Inquiry will also be asked to explain their processes for searching and identifying documents.  Any gaps identified by the Inquiry will result in additional document requests.

Some large organisations will be asked to provide a “Corporate Statement”.  The purpose of this statement is to provide a summary of relevant and uncontroversial facts, including information about an organisation’s corporate structure and a factual narrative of key events.  This is intended to maximise efficiency by directing the Inquiry to the core factual issues and is not an opportunity to set out a position on more controversial matters.

Disclosure

Disclosure of evidence is a subject which tends to cause much consternation during the course of any given Inquiry, and this Inquiry is no different.

Core documents will be disclosed to Core Participants for their review and comment.  This will likely begin in early 2023.

A number of Core Participants have repeatedly asked the Inquiry to agree to share the actual Rule 9 Requests with them, so that they might advise the Inquiry on any other relevant material which should be obtained or parties which should be approached.  The Inquiry is not obliged to disclose the Rule 9 requests and so far, has indicated that it will decline to do so, on the basis that this would cause undue delay.  This remains a point of contention with some Core Participants, who claim that this threatens to undermine the thoroughness of the evidence gathered, as well as public faith in the robustness of the exercise.

By way of compromise, the Inquiry offered to provide monthly updates to the Core Participants on Rule 9 requests, including what requests have been made, whether documents have been received and what further documents can be expected.  However this approach was challenged by the Trades Union Congress on the basis that if the updates are sufficient to allow meaningful engagement from Core Participants, the Inquiry may as well simply disclose the Rule 9 Requests.  On the other hand, if the updates are not sufficiently detailed to allow the Core Participants to express a view, the purpose of the update is defeated.

Other points to note in terms of disclosure are (a) that not all documents will be disclosed to Core Participants (or indeed publicly) – only the “core documents”; (b) the Chair will not publish a list of documents which have not been disclosed and (c) certain disclosed documents will be redacted for reasons such as removal of personal data.

Experts

The Inquiry will appoint qualified independent experts to provide written reports and opinions on certain matters, and in some cases, oral evidence during public hearings. This is aimed at ensuring the Inquiry’s conclusions and recommendations are fully informed by the best possible evidence.

The experts might provide evidence on a matter individually or as a group dealing with a wider topic. Where there are significant differences of view between experts, this will be made clear in the written reports and can be tested during oral hearings.

The Inquiry’s Independence

Mr Dawson KC was at pains to stress that the Inquiry is completely independent, and that it will investigate and draw conclusions entirely independently of those who held positions of responsibility, made decisions or gave advice during the pandemic (including both the UK and Scottish Governments).  He stressed that this approach will be pursued “with tenacity” throughout, for the benefit of the public.

What’s next?

• November 2022: First requests for documents issued
• Before 2023: Listening exercise rolled out
• Early 2023: Further Preliminary Hearing (in London and remotely)
  • Update on progress
  • Any required refinements to the scope
  • Opening statements from Core Participants
• Autumn 2023: Substantive public hearings (in Scotland) (Note: the Scottish Covid-19 Inquiry has indicated that it will not start hearing evidence until 2024).

Our expert Public Inquiries practice is closely monitoring the progress of both the Scottish and UK Covid-19 Inquiries, and can assist with any inquiry related queries you may have. Please get in touch and we’d be happy to talk through how we can help.

Related News, Insights & Events