UK Covid-19 Inquiry: Latest update: Module 2

On 6 June 2023, the third Module 2 preliminary hearing took place. Module 2 is primarily focused on core UK decision-making and political governance and, more specifically, the decisions made by the UK and devolved governments. The first and second preliminary hearings in relation to Module 2 took place on 31 October 2022 and 1 March 2023 respectively. Our previous speed brief on the first preliminary hearing can be read here.

The third preliminary hearing addressed a number of issues including:

• panellists

• update on Rule 9 requests

• disclosure to Core Participants

• list of Issues and provisional list of witnesses

• expert witnesses

Every Story Matters, Commemoration and Impact films

In advance of the hearing, on 17 May 2023 Counsel to the Inquiry (“CTI”) provided a note containing an agenda and a series of helpful updates. The aim of this note was to ensure an effective hearing by introducing the matters to be addressed. This note can be read here.

Panellists

At the hearing, CTI confirmed that following a decision by the Prime Minister, Rishi Sunak, the Inquiry will sit without a panel. In a written statement to Parliament in which Mr Sunak announced this decision, he stated that, “it is in the public interest that the Inquiry be thorough, rigorous and comprehensive, but also that it delivers its report without excessive delay”. This decision indicates that, having weighed up the relevant issues, Mr Sunak decided that the Inquiry would be “most efficient and swift” if the Chair were to sit without a panel. The statement made by Mr Sunak can be read here.

Update on Rule 9 requests

CTI confirmed that the Inquiry’s Module 2 legal team has now issued more than 400 Rule 9 requests for evidence (including those issued jointly by Modules 2, 2A, 2B and/or 2C, and including over 200 questionnaires). Requests have been made to government departments, senior civil servants and Ministers, government advisers, scientists, non-governmental organisations, organisations and bodies representing at-risk or vulnerable groups, participants of the Scientific Advisory Group for Emergencies (“SAGE”) and related sub-groups, members of Independent SAGE, medical and other relevant professional organisations. The wide range of witnesses demonstrates the Inquiry’s broad approach to its ongoing investigation, which is further reinforced by CTI’s confirmation that the Inquiry has accepted, in certain circumstances, additional suggestions from Core Participants as to who should receive a Rule 9 request.

The Inquiry is confident that the vast majority of the final, signed statements and their exhibits will be disclosed to Core Participants by the end of July 2023. However, CTI has stated that a considerable number of the draft statements submitted to the Inquiry so far have either contained insufficient detail or do not address all the matters raised in the Inquiry’s Rule 9 request. Accordingly, it has been necessary to ask many witnesses to expand upon the matters contained in the draft statements. This has added to the Inquiry’s workload and has resulted in the delay of disclosure of that evidence to Core Participants.

CTI raised concerns that the Inquiry has about aspects of the disclosure exercise being conducted by a limited number of Government departments. These issues include providing redacted rather than unredacted material to the Inquiry, provision of potentially relevant WhatApp and Google Space messages, and materials relevant to Whitehall's engagement with the Devolved Administrations. CTI has noted that, given the relatively short period of time remaining before the start of the substantive hearings, these difficulties have the potential to disrupt the Inquiry’s process unless they are swiftly resolved. CTI takes the view that it is appropriate that Core Participants are sighted on them.

At the hearing the Chair acknowledged that, as has widely been reported in the media, an issue has arisen between the Inquiry and the Cabinet Office as to who decides what material is relevant or potentially relevant to the Inquiry. The Chair explained that she issued a section 21 notice under the Inquiries Act 2005 (“the Notice”) to compel the provision of certain material. Failure to comply with the Notice is a criminal offence. This procedural step makes it clear that, in her view, it is for the Chair to decide what is relevant or potentially relevant. The Cabinet Office disagrees, claiming they are not obliged to disclose what they consider to be unambiguously irrelevant material and has invited the Chair to withdraw the Notice. The Chair has declined to withdraw the Notice and this decision is now being challenged by the Cabinet Office in the High Court by way of judicial review. Pending the litigation, the Chair declined to make any further comment. A rolled-up application is likely to be heard on 30 June 2023, or very shortly thereafter, meaning that the court will consider the application for permission and then, if it grants permission, it will go on to consider the full application.

Disclosure to Core Participants

Save for a significant number of draft statements in response to the Rule 9 requests, the Inquiry expects that it has now received the vast majority of the disclosure relevant to Module 2. Whilst over 13,000 documents have been disclosed across 19 tranches of material, the Inquiry has a significant volume of materials still to review, assess for relevance and work through before it can be released to Core Participants. The materials will continue to be made available to Core Participants as quickly as possible with the vast majority of signed witness statements expected to be disclosed by the end of July 2023.

List of Issues and provisional list of witnesses

CTI has confirmed that on 27 April 2023 a list of the proposed issues was circulated to the Core Participants who were asked to provide their comments on the list within two weeks. At the hearing, CTI confirmed that these comments are currently being considered and indicated that the earliest date the List of Issues for Module 2 will be published is mid to late July 2023.

Expert witnesses

CTI confirmed that four experts have been instructed in relation to various issues related to the decision making processes of the Government. Where the expert reports have not yet been shared with Core Participants, they are expected to be shared in the coming weeks. In addition, the Inquiry will be instructing a separate expert to report on “the nature and degree of pre-pandemic structural racism”.

Every Story Matters, Commemoration and Impact films

The Chair has previously directed that impact films be played at the commencement of each module. CTI confirmed that filming has commenced and that the Inquiry is exploring a means by which the films can be shared securely with all Core Participants in advance of the hearing.

Future Hearings

As per a further update from the Inquiry published on 8 June 2023, the Inquiry will begin hearing evidence for its first investigation into the UK’s preparedness and resilience for a pandemic on Tuesday 13 June 2023 at 10:30. The hearing will open with a statement from the Chair, followed by a short film showing the impact of the pandemic, featuring people from across the UK, sharing their experiences of loss. This will be followed by opening statements from Core Participants to the first investigation. The Inquiry will then hear testimony from witnesses. 

Futher reading
Our Inquiries & Investigations team has written extensively about the Covid-19 Inquiry.
Read the previous articles in the series on our dedicated Covid Inquiry Hub.