18 January 2023: Closing Statements, Eleanor Grey KC

Eleanor Grey KC has an impressive reputation when it comes to Inquiries. However, maybe even this master technician of the legal system was bound to fail in any attempt to defend the already glaringly indefensible. Since the very late announcement of her closing statement slot being delayed and greatly downsized – which was less than a day’s notice – then it only served to raise the anticipation levels about what she might say.

 

The statement began with a listing of who exactly she represented, being in general the Department for Health and Social Care (DHSC) but also specific bodies under its stewardship umbrella. There was a somewhat strange aside to say who was not being represented. The DHSC wanted to clarify that any individuals previously working within the DHSC and its historical manifestations were not being represented. Rather, those individuals were being supported separately by Government lawyers. So, it appeared that not only is the DHSC not willing to stand by its own historical positions as articulated and enacted by previous employees, it is also not willing to stand by these, its own past people.

 

A moment to acknowledge the power of the infected and affected peoples’ testimonies seemed genuine had it come from the person saying the words, but obliged from the body represented. This writer suggests that the DHSC would be placing itself in the firing line if it even hinted at criticising what people had said had happened to them, even if their own people from the past had sought to counter the assertions of wrong-doing or not right-doing by the infected and affected.

 

With the “pleasantries” out of the way, Ms Grey stated that the DHSC does not have a case to press upon the Chair, rather it is prepared to respond to the Inquiry once it publishes its findings. She mentioned the specific questions put by Steven Snowden KC the previous day. She said she did not intend to respond to these questions. “With respect” she suggested that there was more than one way to respond to an Inquiry than just to argue for or against any points. There would have been the potential to stoke the flames of distress for the infected and affected by doing so. The DHSC does not think it should present an interpretation of the evidence and proposed recommendations, rather it would let the Chair do his work. She recognised how this stance might have meant the DHSC could have declined to make final submissions and a closing statement, but it was the intention to briefly reflect on the evidence as submitted by those from the bodies Ms Grey was representing and the process of them engaging with the Inquiry. So, the DHSC would not use the opportunity to challenge any evidence presented by other witnesses. She asserted it was not a lack of candour to take the position not to seek to direct the Inquiry on what findings to make. In fact, Ms Grey mentioned the examples of openness by the DHSC when any evidence was later discovered to be inaccurate and needed to be corrected.

 

On compensation, Ms Grey briefly reviewed the context for the Robert Francis study, and the actions taken to respond particularly to the priority issue of interim payments. The lack of the Government issuing a response to the Francis report was a matter explained by the complexity of the issues and was said to be in line with comments by the Chair in his interim report. It was important to respond to the full evidence after it was known. The DHSC was open to continuing to work with the Inquiry in the pursuit of its work.

 

It was not seen by the DHSC as necessary to respond to and counter the arguments set out by other final submissions or any specific evidence presented during the Inquiry. That, it was suggested, would risk stirring up the issues for the infected and affected. Ms Grey did acknowledged the lateness of the change to a much shorter oral closing statement.

 

In what appeared to be her closing comments, Ms Grey acknowledged the restraint of those attending by allowing the witnesses to appear with dignity and without intimidation or interruption. This was almost an admission that doing so would have been justified or at least understandable. She recognised the input of the infected and affected in the difficult role of preparing and presenting evidence to the Inquiry.

 

So ended the crucial input from the DHSC. Very short, not at all sweet.

 

The Chair reinforced the helpful way the attendees had watched with dignity and respect as DHSC witnesses gave their evidence. He recognised the support given to the Inquiry by the DHSC, with a few “wrinkles”. He noted the DHSC position not to take a position, but also noted how at the start of the Inquiry it seemed to then have a position. He pressed Ms Grey to know what the previous apologies were for, but she said she would have to go back to her clients and seek their direction rather than respond “in chamber”. The Chair said he would reflect on the response. The last interaction between Ms Grey and Sir Brian came across as a delicate and very refined dance around a ticking time-bomb with neither one prepared to first reach out and press the big red button.

 

And that was it. The position seems to be that the current incumbents of the DHSC do not want to be criticised in any way, and so are not putting up any defence on behalf of its predecessors. It is simply going to let the evidence speak for itself, offer no interpretation, issue no challenge to others’ assertions, and leave it up to the Chair to do with the evidence what he will. The DHSC is simply going to take any hits in the Inquiry final report and respond to them when they come. Clearly, the opening comments about the DHSC not seeing itself as representing the individuals who were in the equivalent official roles historically was because those in the roles now are not willing to stand by their forebears, go0d or bad, but are only willing to let Inquiry justice and any subsequent consequence take its course without touching them. Their own old ones are to be left under any bus, and their dead are to have vultures pick over the bones. What a spineless response. Ms Grey must be embarrassed, while it is her client the DHSC who should be.