31st May 2023
The notice issued by the `Covid Inquiry yesterday was a small yet delicious work of procedural art that should be appreciated by connoisseurs of the genre of formal documents.
But to understand why requires some context.
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From the content of documents now published at the Covid Inquiry website we can work out the following:-
On 3 February 2023 the Inquiry sent a Rule 9 request for information to the Cabinet Office.
On 30 March 2023 and 18 April 2023 the Cabinet Office set out in correspondence to the Inquiry that it had “jurisdictional objections” to the request.
On 28 April 2023 the Inquiry issued a Section 21 Notice demanding that certain information be disclosed to the Inquiry.
The Notice contained a demand for four lots of evidence, three of which were in respect of former Prime Minister Boris Johnson.
Those three lots of Johnsonian information were:
The response of the Cabinet Office to this formal notice was to instruct the government’s most senior external lawyer to make a 10-page legal(istic) application to object to the notice, dated 15 May 2023.
The essence of the application is that it was outside the legal powers of the Inquiry to request what the Cabinet Office dubbed “unambiguously irrelevant” material and that it was for the Cabinet Office to determine what was “unambiguously irrelevant”.
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The Application also contained this interesting passage (emphasis added):
“The inclusion of Mr Johnson’s diaries and notebooks in the Notice is not readily understood by the Cabinet Office, as that particular material had not been the subject of any discussion or purported concern on the part of the Inquiry in correspondence, which was focussed upon WhatsApp messages. No explanation for the specific choice of material in the Notice was set out in either the Notice or the Letter.”
It would thereby appear that the request for the diaries and notebooks was new, and that it was not thereby in the Rule 9 Request of 3 February 2023.
Nonetheless, the Application states firmly (emphasis added):
“It is equally unsurprising that WhatsApp threads may contain personal information of a kind which could have no conceivable bearing on the issues being considered by the Inquiry, including personal information of junior officials. All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”
The indication from the emphasised text is that the Cabinet Office could speak to the content of the notebooks, which in turn would suggest that the Cabinet Office had (or had access to) the notebooks.
Interestingly, that last point only refers to the notebooks, and not to the diaries.
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The Application is a full-out challenge to the jurisdiction of the Inquiry in issuing the notice, of which only the third part is to do with privacy.
Here the government mentions Article 8 of the ECHR:
This reliance on Article 8 will amuse those who aware of the loud complaints made by ministers about others relying on Article 8 grounds when faced with exercises of state power.
The Application as a whole reads as if it is a prelude to litigation: setting out the public law grounds for a judicial review of the Inquiry.
It is less of an Application, and more of a letter before action.
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The Application was met with a short ruling by the Inquiry chair on 22 May 2023, which set out that the Inquiry had wide terms of reference and that the question of relevance is the Inquiry to decide, and not the Cabinet Office.
The chair also explained why she asked for the notebooks:
“The documents that are required to be produced are specified in some detail in the Annexes to the Notice […} Mr Johnson’s diaries for the same period, together with notebooks that I have been told contain his contemporaneous notes. […]
“By the date of the Notice, the Inquiry had received […] exhibited to the draft statements of other Cabinet Office witness statements, redacted extracts from the diary of Mr Johnson. Whilst it is correct that Mr Johnson’s notebooks had not been produced to the Inquiry in redacted form at the date of the Notice, disclosure of these documents was due on the dates provided for in the Notice and the Cabinet Office had already stated that they would be redacted for relevance.”
What it looks like is that the chair used the issuing of a notice that she was going to issue anyway to formally request the notebooks and the diaries, parts of which were arriving in other forms.
The chair is also saying that she knows the Cabinet Office must have access to the Johnson diaries, else parts of those diaries would not be exhibited to witness statements prepared by the Cabinet Office.
She added:
“The essential thrust of the application therefore appears to be that this assessment is irrational, and thus there was no power to issue the Notice, because the Cabinet Office has reviewed the documents for itself and has concluded that those parts which are sought to be withheld from the Inquiry are “unambiguously irrelevant”. I do not accept that my assessment was irrational.”
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Now it was back to the Cabinet Office.
What were they to do?
The date now was now Monday 22 May 2023, and the Inquiry had set a deadline of Tuesday 30th May 2023 (a day following a bank holiday weekend).
Would the Cabinet Office comply?
Would they they bring a judicial review?
Would they not comply and wait to see if the Inquiry brought enforcement action?
Tick tock.
And late on Friday – unannounced – the Cabinet Office sent another letter to the Inquiry.
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In a notice in response the chair noted: “Shortly after close of business on Friday 26 May, the Inquiry received correspondence from the Government Legal Department on behalf of the Cabinet Office, raising two matters for the first time.”
Government lawyers are usually very good with deadlines – and so it would seem to me that for correspondence to be sent so late on a Friday (“after close of business”) then there was a lot of (ahem) internal discussion going on and escalations to senior people to sign things off.
This late-on-Friday letter raised two points.
First, and optimistically, for an extension until a week Monday.
And second, “the Inquiry was informed that the Cabinet Office does not have in its possession either Mr Johnson’s WhatsApp messages or Mr Johnson’s notebooks, as sought in the original section 21 Notice.”
What?
You will recall that these WhatsApp messages and notebooks were the ones that the Cabinet Office had confidently said, only day before, in the Application were covered by its reasoning:
“All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”
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Oh dear.
It is (ahem) difficult to understand how the Cabinet Office could be so strident in its Application in saying that the WhatsApp messages and notebooks contained “unambiguously irrelevant” material and then to admit that, well, the Cabinet Office did not actually possess those messages and notebooks.
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Well.
The chair of the Inquiry is no fool, and her notice first thing on Tuesday in response is a fascinating exercise in procedural power.
First, she grants an extension – not the extension which was being sought, but one just long enough to serve what follows.
The extension is of two days, until 1 June 2023.
Second, she says she will accept that the Cabinet Office does not have under its custody or control the requested materials only there is a full detailed explanation for why this is so – and that this explanation will need to be attested to by officials with a signed statement of truth.
That is, under pain of perjury.
This is hardball.
And two days is just long enough for such an explanation to be put together, but not to do much else.
It is worth reading the conditions in full:
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The impression one gets from this is that there is something which is not quite right with what the Inquiry has been told by the Cabinet Office in correspondence in response to the original Rule 9 Request.
The requirement for a signed statement of truth is significant – and you may recall that the Miller II case on the prorogation of parliament was lost by the government because nobody was willing to provide a statement of truth as to the actual reasons for the prorogation.
The two-day extension, plus the requirement for signed statements of truth, has the elegance of a spring-trap.
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There are two further pieces of information.
First, the Cabinet Office issued a statement yesterday, which was widely republished:
“A Cabinet Office spokesperson said:
“We are fully committed to our obligations to the Covid-19 Inquiry. As such, the Cabinet Office alone has already provided upwards of 55,000 documents, 24 personal witness statements, eight corporate statements and extensive time and effort has gone into assisting the Inquiry fulsomely over the last 11 months.
“However, we are firmly of the view that the Inquiry does not have the power to request unambiguously irrelevant information that is beyond the scope of this investigation. This includes the WhatsApp messages of Government employees’ which are not about work but instead are entirely personal and relate to their private lives.”
Curiously, there is no mention here of the Johnsonian diaries or notebooks, even though in the Application stated the same arguments “apply with similar force and obviousness”.
It is also understood that the Cabinet office’s position is that the Inquiry does not have the power to compel the Government to disclose unambiguously irrelevant material given the potential adverse impacts on the process around formulation of government policy in future and the privacy of the individuals involved, and that to release this information would set a harmful precedent.
The Cabinet Office are also said to be concerned that the information the Inquiry is asking for includes purely personal information, as people working for Government have a right to a private life.
Additionally, it is understood that the Cabinet Office maintains that the judgement on what constitutes “relevant material” and what should be redacted is made by legal counsel, overseen by a KC, not the individual witnesses or Government officials.
But.
What is not understood is how any of this deals with the content of the spring-trap: did the Cabinet Office have the documents or not?
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The second piece of information is in a news report in Bloomberg, which is summarised in the tweets of the reporter:
Eadie advised that disclosing “politically sensitive” material to the inquiry on discussions between ministers would breach Cabinet collective responsibility, which allows confidentiality to debate policy
Govt tonight insists it’s an important principlehttps://t.co/7FCiG4X7r9
— Alex Wickham (@alexwickham) May 30, 2023
EXCLUSIVE: Sir James Eadie KC’s legal advice says officials working on the govt Covid inquiry response graded the material with a red, amber, green traffic light system, before deciding whether to release it
Red is the most “politically sensitive” https://t.co/7FCiG4X7r9
— Alex Wickham (@alexwickham) May 30, 2023
More Eadie advice on the govt’s traffic light system to rate materials: “work has begun to grade the applicable CCR material on a green/amber/red basis. That will be helpful in identifying for internal purposes the material of greatest sensitivity."https://t.co/7FCiG4X7r9
— Alex Wickham (@alexwickham) May 30, 2023
It is not clear the extent to which this is formal legal advice, as it seems to be more about general (non-legal) constitutional points.
In particular, a “breach of Cabinet collective responsibility” is a comment about a political convention, and not a rule of law.
From what Bloomberg reports, it seems the lawyer is giving sensible practical steers on the constitutional framework for resisting the requests, which is more practical than strictly legal advice.
It is exactly the sort of advice which a government that took confidentiality seriously should be concerned at being disclosed.
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What will happen next?
Will the Cabinet officials sign the statements of truth, under pain of perjury, detailing exactly what has happened to the requested information?
Is the government seriously going to bring a Human Rights claim on the basis of Article 8?
Will the Cabinet office blink? Or will the Covid Inquiry blink?
Whatever happens will be significant, for as this blog has averred before, the outcome of this contest will be fundamental to the ability of the Inquiry to properly look at the government’s role in the pandemic.
And, in this particular instance, it should be for the Inquiry to decided what is relevant.
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Disclosure: I am a former central government lawyer.
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It will be fascinating to see how this plays out. ‘Unambiguously irrelevant’ is not only a novel term but hardly likely to include anything very much during that period. If the former PM was at the opera one evening, details of that may seem unambiguously irrelevant, but if the performance was at the same time that a crucial Covid-19 related decision should have been – or was recorded as having been – taken then that would make it relevant.
One point I haven’t seen discussed is what it would take to deny control: one might take care to only read someone else’s copy of some documents over their shoulder to try and avoid being pinned with possession, but “control” is defined in section 21(6) of the 2005 Act in a way that includes a right to possession.
Will the Cabinet Office now need to argue they don’t have the right to possession of a former PM’s diaries, notebooks, and at least the portions of his WhatsApp messages that relate to official business?
A point that puzzles me, and which someone here may be able to clear up: When I worked for various companies and organisations, any diaries and other information that I kept for that company or organisation were their property, and when I left, such documents were retained by them. I presume this applies to Johnson’s notebooks, messages and diaries (those kept in his office not, obviously, any that he wrote in his flat for solely personal use). If the Cabinet Office no longer has these items, is it because it allowed Johnson to take them with him, or did they decide to destroy them? Given that there was an Inquiry looming, doesn’t that amount to wilfully destroying/hiding/giving away potential evidence? And isn’t all this material ultimately public property, given that in a democracy a government is chosen by and serves the electorate?
The explanation is simple: this is the UK and the rules don’t apply to people like Johnson.
How does the author produce comments of such staggeringly high quality in such a short period of time?
The skill exhibited here is unique, or very close to unique.
It looks like the Cabinet Office does have all Mr Johnson’s things: https://twitter.com/breeallegretti/status/1663932368422412288 and next two tweets:
“Johnson also “urges the Cabinet Office to urgently disclose” all the un-redacted documents to the Covid inquiry.
Statement adds: “The Cabinet Office has had access to this material for several months.”
******STOP PRESS******
A statement from the former PM’s spokesman said: “All Boris Johnson’s material – including WhatsApps and notebooks – requested by the COVID inquiry has been handed to the Cabinet Office in full and in unredacted form.
Presumably the government will have no particular interest in protecting Boris Johnson. As Eadie explained (per the Alex Wickham tweet, quoted above) “[the] material will concern a number of Ministers still in office, and potentially in the same office. On any view, it will be extremely recent and of the greatest political sensitivity.”
So why is Johnson prepared to see all his documents released? Perhaps to bring down the whole house of cards?
Après moi, le déluge.
The detail in that Bloomberg’s story says the legal advice was last year, and that cabinet discussions should not be disclosed “as a matter of course”.
That suggests the advice is reasonable – but wholly irrelevant to the question in hand.
Would it be fair to say, then, that civil servants are being asked to state, under pain of perjury, that they did in fact at one point have their homework, but that something or someone disposed of it. Presumably, despite a dogged search, they can no longer find it.
There is much to enjoy in the Chair’s conditions, but I especially appreciate
“d. Whether it is understood that the potentially relevant messages held by
Mr Johnson are on a personal, or Cabinet Office/No.10 device.”
I assume that Johnson should most definitely not have been using a personal device for such correspondence, but if he used a Cabinet Office device, why does the Cabinet Office not still have it?
This seems a damning question either way, of the “do you still beat your wife?” variety.
Beautifully done.
Mr Green some questions arising from your excellent article (and apologies if the answers are already there and I missed them)
1) It appears that the Inquiry already knows that there are 24 Notebooks. It is surprising then that the Cabinet Office appears not to either have the Notebooks or copies of the Notebooks. Are there rules about keeping such information?
2) Am I understanding this correctly that there is a possibility that Johnson was using a private WhatsApp account while in office? Presumably if he was using a Goverment supplied phone for WhatsApp communications then that Government phone and messages are in the control of and owned by the Government?
3) Given the security implications one would have thought that the use of private phones when in office would be prohibited. However if Johnson was using a private phone for WhatsApp messages while in office then can the Inquiry direct him personally to provide those messages ? Are there any rules/laws about keeping (i.e. not destroying) information on private equipment?
Blisteringly good. Thank you!
There is no necessary relationship between ‘politically sensitive’ and ‘unambiguously irrelevant’. Something might be extremely sensitive politically (the PM recommending that the bodies be allowed to pile up in their thousands, unlikely as that may seem) yet also be unambiguously relevant. And why is Johnson saying he has handed it all over, if the Cabinet Office is saying they don’t have it all, and that he (Johnson) is happy to forward it all to the inquiry, per the BBC 10 minutes ago? Is it Sunak who is in the politically sensitive target zone?
A less inept Cabinet Office and Government might have handled this better. Instead, they have adroitly manoeuvred themselves into a lose / lose corner. If they refuse to cough up the documents they will be seen (justifiably) to have something to hide. And the escalation can only get worse for them and they might still lose. If they comply they will have not only have to cough up the documents but will be seen (rightly) to have lost this arm-wrestle. As they will all be long out of power and office by the time the Inquiry reports and whatever reputations they might now have will have been shredded by then, surely wisdom would suggest it would be better to succumb now, quickly and quietly. Lady Hallett doesn’t look to me like one for blinking first.
I work for a company that had provided advice to the Northern Ireland administration on the Renewable Heat Initiative (RHI), which famously went badly wrong. When the RHI enquiry came along, they examined all of our company’s internal emails from the relevant period, and decided for themselves what was relevant from them.
Large amounts of the material the enquiry examined was “unambiguously irrelevant”, by anyone’s understanding of that term. There was much of commercial sensitivity, and of very strict confidentiality to our many other clients, among those emails. We had doubtless signed confidentiality agreements not to disclose some of that information. So they sorted through all that, and retained what was found relevant.
Obviously no one would trust us to decide what was “unambiguously irrelevant”, and thin it out. Because we had a strong interest in it. In practice, we were exonerated.
I can see that the cabinet office might argue it is different from us. Being civil servants operating under the civil service code, they might argue they can be utterly trusted on this when others couldn’t be. But as far as I can see the Cabinet Office acts under political direction, and is so acting here. Indeed, it appears to me that if it matters so much to the Cabinet Office that they resist it so strongly, in itself that suggests that there is an interest being protected, and that’s why they shouldn’t be making the decision on it.
Revenge on Sunak?
The idea that UK GDPR is a credible reason to withhold information is a nonsense – there is plenty of scope within the rules of GDPR for complying with exactly this sort of enquiry. I imagine the same is true for the ECHR.
The principle of data minimisation applies to the recording of personal data at the point it is recorded and the period it is retained. This would be covered in government personal data processing protocols. The subsequent sharing of that data with third parties would also be covered. But third parties – such as those conducting a statutory enquiry – are covered by a simple clause allowing a data processor to release any information that would otherwise inhibit a legal (or presumably statutory) enquiry.
Masterful use of ‘ahem’ there
If ministers and senior civil servants stopped using WhatsApp for work purposes then none of this would arise. For example the insecure behaviour evidenced from Hancock’s messages (and likely also from Johnson) would have had a junior civil servant fired and likely prosecuted under the OSA.
On similar lines the Cabinet Office simultaneously want to be able to redact messages on National Security grounds but also claim to not have control of that data. What on earth are they playing at leaving potentially sensitive material on Johnson and others’ personal devices?!
Constitutional Law is not supposed to be fun.
God, this is fun.
“Second, she says she will accept that the Cabinet Office does not have under its custody or control the requested materials only there is a full detailed explanation for why this is so – and that this explanation will need to be attested to by officials with a signed statement of truth.
That is, under pain of perjury.”
No-one will do it, just as they didn’t re prorogation.
Thanks so much for this assessment, as we don’t get anything like it in the MSM.
Fascinating article. It’s never good to mess with a superb legal brain. Presumably the WhatsApp messages are on work phones and should, therefore, be work related. I suspect that Sunak is trying to protect himself.
Readers will recall that Article 8 is the one that says you don’t have to hand over information if you have a cat.
I expect Larry to be the star witness in any proceedings.
The inquiry’s section 21 notice issued in April 2023 has asked for three categories of information from the relevant period (January 2020 to February 2022) as being potentially relevant to the lines of investigation being pursued by the inquiry, and one splits into two groups:
(1) Johnson’s diaries (that is, records of what he did and when, which are plainly relevant)
(2) Johnson’s contemporaneous notebooks (that is, what he himself recorded at the time; again, plainly relevant)
(3A) messages on group chats used for (or made to) communicate about the government’s COVID response (plainly relevant to an inquiry into, you know, the government’s COVID response)
(3B) messages with the 41 people on the specific list in Annex B (starting with Chris Whitty, Patrick Vallance, Jenny Harries, and Jonathan Van-Tam, but also including a range of civil servants and advisers including several permanent secretaries, several of the prime minister’s private secretaries, Dominic Cummings, directors of his communications team, and many ministers including Sajid Javid, Steve Barclay, Penny Mordaunt, Liz Truss, Michael Gove, Kemi Badenoch, Matt Hancock, Dominic Raab, and Rishi Sunak).
So is it really the last category (3B) that is most problematic – Johnson’s electronic conversations over two years with a long list of specific people? No doubt there may be plenty of messages here that are not particularly relevant.
Or is the concern that there might be all sorts of non-COVID political nonsense and personal chit-chat mixed in with the serious stuff on the group chats, or in the diaries and the notes?
There are many thousands and pages of documents to go through, and someone (perhaps equipped with an AI tool) will have to separate the wheat from the chaff. Plainly the inquiry team does not want the Cabinet Office to pre-filter the information that comes through. Who knows where its lines of investigation may lead.
It is a little surprising that the Cabinet Office thinks it can fillet the information, rather than just handing over everything that has been requested and trusting the inquiry to do its job.
Re the Miller case ” nobody was prepared to provide a statement of truth” – doesn’t that one line sum up the entire current Conservative Party and it’s disgraceful government!
Did I understand correctly that a part of the argument is that the staff have a right to privacy, so their messages should not be passed on to the chair, but apparently it is not a violation of their privacy to pass those same messages to somebody at the Cabinet Office to decide if they are relevant?
Um.
My only comment would be that “the most Politically Sensitive” material for the Cabinet Office might also be the most criminally sensitive for the Inquiry or any further Police Investigations.