26th May 2023
My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.
To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.
This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.
For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.
See my previous post on this here.
The section 21 notice was dated 28 April 2023.
And you will see in the appendices the requests for information in respect of Johnson.
The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday
Remember Monday is a bank holiday.
And today is Friday.
The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.
The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.
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There now seems to be four possible outcomes of what is now a stand-off.
1. The Inquiry may extend the deadline again, but there is no evidence this has happened.
2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.
3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.
4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.
If the choice is (4) then there really is not a lot of time.
I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.
We can bet it is.
But the stakes are now high – and there is not a lot of time to leisurely consider the position.
Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.
Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.
But if the decision is to bring a legal challenge, there is almost no time left.
And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.
If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.
But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.
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Which side will blink?
And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?
The impression given by her ruling this week is that she means business.
But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.
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Jeremy Quin, Minister; Oliver Dowden, Minister and Simon Case, Cabinet Secretary: two duds and a doormat. I hope Chair Hallett has them for breakfast (on Tuesday morning).
With a 4pm deadline, it would have to be an All Day Breakfast.
I have a long history of being skeptical about the benefits of public authorities imposing fines on other public authorities. But a public authority commencing criminal proceedings against a government department seems even more confusing. Apart from shaming them into compliance, what on earth could be the point?
Interesting analogy with CMA information requests? Parties cannot refuse to supply information on grounds of commercial sensitivity and the CMA (with representations from parties) decides what redactions are made before publication.
Thanks for the (as always) interesting post. One question on which I (as an interested layperson) be interested in your/others’ views. If criminal proceedings *were* brought – *who* would be criminally liable? The notice appears to be addressed to the Cabinet Office – is this a legal person which can have criminal liability? Or is it a minister with Cabinet Office responsibilities? Or something else? Thanks for any clarification!
“Oh, what a tangled web we weave, when first we practice to deceive!”
What can possibly be the issue for the Cabinet Office not wanting to comply in full with the request?? Surely it would be a happy coincidence if BJ was thrown under a bus, so is the real reason that it shows Sunak’s grubby involvement in a poor light? But of course he has already promised his government will act with “Integrity professionalism and accountability “!!
Same old hypocrisy.
Terry (comment above) asks about possible criminal proceedings. I too am interested in this. I don’t see how the Cabinet Office (as such) can be criminally liable as opposed to individuals within the Cabinet Office (e.g. the Prime Minister, or Minister for Cabinet Office etc). The Inquiry Chair could take matters to the High Court which section 36 provides for.
Interesting to note that WhatsApp was widely used within government – perhaps because of its encryption. WhatApp itself may yet withdraw its service from the UK because of the Online Safety Bill – (maybe another topic for you!).
Any WhatsApp material will be on the memory of devices used by individuals and not on WhatsApp servers where it is retained for only 30 days. I wonder how many of those devices are still available two to three years down the line?
Who will blink? Hard to know exactly what will happen next but the government will have to respond. Not to comply will cause not only legal issues but also a serious political issue. Note however the national security card up the government’s sleeve.
I share the above puzzlement at the naming of “the Cabinet Office” as the subject of the statutory notice.
An office is a nebulous thing; a minister not so much. His Majesty’s Government is people.
Government departments generally have no corporate existence as such, legally and constitutionally, but are mere manifestations of the ministers they serve – ministers who are ultimately personally accountable to Parliament and the courts.
The Inquiries Act 2005 makes no special mention of government departments (other than in respect of Northern Ireland, whose departments are statutory bodies corporate unlike most of those of Whitehall such as the Cabinet Office). A section 21 notice is given by the inquiry chair in respect of “a person”. Enforcement in case of actual or threatened non-compliance is by the chair’s certification to the High Court under section 36.
That said, in legislation the singular famously includes the plural, and the word “person” anyway includes “a body of persons corporate or unincorporate” (Interpretation Act 1978).
Is the Cabinet Office then, in the statutory sense, a person? Lacking an association agreement, it may not be a “body of persons”, but arguably it might be equated with those persons who for the time being hold office or employment there.
Moreover the Crown Proceedings Act 1947 provides that “Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department” rather than against the minister in whose name the department acts (section 17(3)). “Civil proceedings” is defined to include “proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division” (section 38(2)). The “Crown side” carve-out ensures that ministers not departments remain defendants in judicial review cases. Nor do these provisions “affect proceedings initiated in any court other than the High Court or the county court” (section 23(4)). It doesn’t look like a statutory inquiry is within its scope.
So, putting aside constitutional and political considerations of accountability, was Baroness Hallett referring to the Cabinet Office rather than a particular minister so as to embrace any and every minister and civil servant in that department? That increases the breadth of the notice but at the expense of accountability.
Or was the Cabinet Office named in anticipation of subsequent enforcement in the High Court when the Crown Proceedings Act would arguably apply? It seems odd for the Act to apply anticipatorily to a notice that is not itself a court proceeding within the Act’s express scope.
Or was the naming of a department simply a legal mistake (and a convenient one for the unspecified minister) overlooking that the notice is not itself subject to the Crown Proceedings Act’s switcheroo as to the naming of parties?
For some unfathomable reason the following quotation from “The Winslow Boy” by Terence Rattigan springs to mind:-
Arthur: What is the motion?
Catherine : To reduce the First Lord’s salary by a hundred pounds.
(With a faint smile,) Naturally no one really wants to do that.
Perhaps the issue is a question of who is the Cabinet Office: the Prime Minister, Deputy Prime Minister, Chancellor of the Duchy of Lancaster, Secretary of State in the Cabinet Office (a position which has only existed since February 2023), Minister for the Cabinet Office, Cabinet Secretary(!) or somebody else? This is much more straight forward in most other ministerial departments, where the Secretary of State is the undoubted nominal head.
Maybe the crux of the matter lies in identifying who exactly comprises the Cabinet Office: is it the Prime Minister, Deputy Prime Minister, Chancellor of the Duchy of Lancaster, Secretary of State in the Cabinet Office (a role established only since February 2024), Minister for the Cabinet Office, Cabinet Secretary(!), or another individual altogether? This delineation is typically clearer in most other ministerial departments, where the Secretary of State unmistakably holds the nominal leadership position.