An update following the Module 1 preliminary hearing

Hello. I am writing to deliver an update following the Module 1 preliminary hearing which took place on the 4th October. While we hosted a live client newsletter webinar last week to update you on the outcomes of the hearing (you can watch that below), I thought it would be best to also create a written newsletter so that you read and process the update in your own time, at your own speed. If you have any questions after reading this newsletter, please do not hesitate to get in touch with us either via email at covidinquiry@broudiejacksoncanter.co.uk, or freephone on 0808 296 5839.

A major milestone in the fight for justice

On the 4th October we reached a major milestone when the first public hearing in the Covid Inquiry was held. The purpose of this hearing was to allow Core Participants (CPs) to make submissions on matters of process and law, and for the Chair and the Inquiry Legal Team (ILT) to outline how they plan to run Module 1. This provided us an opportunity as your recognised legal representatives to make submissions on your behalf regarding the running of the Inquiry, particularly Module 1. The aim of this newsletter is to talk you through those submissions.

Prior to the hearing, we sent our written legal submissions to the Inquiry which set out some of the concerns we had, which were of course heavily informed by the feedback we had gathered from you all. As a result, at the start of the hearing the Chair said she wanted to ease concerns and confirmed that the standard of care, including the use of DNRs, was very much an issue she intended to explore as part of the investigation. She confirmed that no one had been barred from giving evidence, but who will be invited to give evidence is yet to be determined. Baroness Hallett explained a little more about the Listening Exercise which she said was designed to allow people to contribute outside the formal hearing setting. She confirmed that she was still considering how proper commemoration can occur.

 

Rule 9s

Rule 9s are the formal requests that are sent to potential witnesses or organisations requesting they provide a statement (and setting out what the statement should address).

In our written submissions we said these Rule 9 requests should be disclosed to all CPs so that we could assist the Inquiry by spotting any gaps that they had not considered. This also ensures transparency which inspires confidence in the Inquiry process. Hugo Keith KC (Barrister for the Inquiry Legal Team) made submissions on the behalf the Chair that it was not necessary to disclose these documents to CPs. Pete Weatherby KC reiterated on your behalf in his oral submissions that disclosure of the Rule 9s would assist all involved and his submissions were endorsed by both the Northern Ireland team on behalf of the bereaved and the Trades Union Congress (TUC, fellow Module 1 Core Participant).

 

Listening Exercise

The Listening Exercise is the exercise that has been proposed by the Chair for this Inquiry as a way to collect your stories for use in the hearings.

Hugo Keith KC explained that accounts provided to the Listening Exercise would be outside of the formal hearings and therefore would not amount to evidence and would not be heard by the Chair. Instead, those accounts would be analysed and summarised in a report by a private research company (yet to be selected), and that anonymised report would be provided to the Inquiry and CPs for use in the hearing. Because the accounts are not going to be considered as evidence and the accounts will be anonymised, the Inquiry is of the view that anyone who participates in the Listening Exercise does not need to be legally represented. We have asked a number of questions including what training and experiences the people who will be doing the listening will have but have yet to receive an answer. We will update you when we hear more on the Listening Exercise.

Covid Inquiry​

Position Statements

Position Statements are official documents that set out each Core Participant's position in this Inquiry.

In our written submissions we said that all state and organisational CPs should provide the Inquiry with Position Statements setting out what its organisation was responsible for, what it did, highlight any good practice but also admit to any errors or omissions. We say these are enormously helpful to the Inquiry because they identify where there will need to be scrutiny and helps to narrows the issues. They have proved useful in other inquiries such as the Manchester Arena Inquiry. Hugo Keith KC made submissions against these being requested saying that the organisation would need to have considered all the disclosure before it was able to prepare such a statement. In our oral response Pete Weatherby KC explained that the state organisations already know what they did and didn’t do and do not need to wait for disclosure. Again, our submissions were supported by the Northern Ireland team for bereaved families and the TUC. 

 

Disclosure

Disclosure is the process of selecting, reading and analysing relevant material and evidence for the Inquiry. 

It had been put forward by the Chair and her team that only ‘focussed and proportionate’ evidence will be disclosed. The focused and proportionate approach means that in theory, the Inquiry could collect thousands of pieces of relevant material but could potentially only share what they deem is a ‘proportionate’ amount. ‘Focussed and proportionate’ has never been the test for disclosure, and we have made submissions on your behalf that the only appropriate test for disclosure is relevance and potential relevance. This promotes transparency and allows proper participation by you in the process.  At the hearing Hugo Keith KC seemed to see the force of our submissions and said that they will gather all material that is likely to be relevant and will disclose all material that is considered to be relevant. We have pushed for the maximum material. We have been told that disclosure will start at some point in December.

 

Pen Portraits

A Pen Portrait is a memorial of your loved one. This is usually written, but can also be visual (a video, for example), showing who your loved one was in life. 

We have repeatedly made the point that any bereaved who wants to share a Pen Portrait memorialising the life of their loved one should be able to. Hugo Keith KC said that such Pen Portraits were not practical and not required in this Inquiry. We have sent you a questionnaire about the Listening Exercise and Pen Portraits and will use your feedback in further submissions to the Chair on your behalf. It is clear from the responses we have received so far to our survey that an overwhelming majority would like an opportunity to share Pen Portraits and to have them used in future hearings.

 

General concerns

Overall, it was alarming that out of the original 26 Core Participants, only 4 were non state bodies. This gives a clear indication in our view of who the Inquiry wants to hear from. It was also alarming that just 4 weeks have been put aside to hear all of the evidence relating to Module 1. This module covers a 10-year period and we do not think 4 weeks is adequate. TUC also supported us on this submission. These hearings are due to start in May 2023 at a venue in London. There was also discussion amongst all CPs about the need for expert evidence and also the difficulty in finding suitable experts who did not play a part in the actual response.

At some point we expect to receive a Ruling from the Chair setting out her response to all the submissions. We do not know when this is due as no date was provided in the hearing.

 

Client newsletter archive

 

If you have any questions regarding the public inquiry process, we have a dedicated and comprehensive Covid Inquiry FAQs page to help. Find out more. If you have a question that you cannot find an answer to, please get in touch with our team at covidinquiry@broudiejacksoncanter.co.uk