30th May 2023
Techies have a phrase for the principle: GIGO – garbage in, garbage out.
In essence, outputs tend to depend on inputs.
With legal(istic) processes – trials or inquiries – what this principle means is that the outcome of the process can be shaped (and often determined) by what is put in.
In the context of civil litigation, it is often possible to see which party is likely to win once all the evidence has been disclosed by the parties.
Sometimes, a civil case will still go to court for a trial, for one reason or another, but almost all civil litigation comes to an end before that final stage.
Inquiries are, of course, different to litigated cases – not least in that in an inquiry legal rights and liabilities are not determined, and there are not really remedies or sanctions.
Instead, an inquiry will set out the facts (as it has found them) in a report, and may make recommendations – and sometimes an inquiry can also point to (non-legal) culpability.
An affected party, therefore, has an interest in shaping the outcome of an inquiry.
And the most direct way an affected party can shape the outcome of an inquiry is by, in turn, shaping the flow of information available to that inquiry.
In practice, this comes down to what evidence that affected party is obliged to disclose to the inquiry – and to what evidence it can prevent other parties disclosing to that inquiry.
GIGO.
But.
The public interest is in the inquiry having access to all the relevant materials, so that its findings and any recommendations are as sound as possible.
The scope of what is relevant is, in turn, determined by the terms of reference (TOR) of the inquiry.
This means there is often a contest between what an inquiry wants to see and what an affected party wants to provide.
And this is the case for any affected party.
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But.
There is an additional practical problem when one of the affected parties is the government.
For the government is usually very good with inquiries.
The government – especially government lawyers – are skilled and experienced in dealing with inquiries.
This is not a surprise, if you think about it: the one affected party common to many matters for which there is a public inquiry is, well, the state.
The other affected parties will come and go, but the state – especially central government – will be involved in inquiries again and again.
And with this skill and experience comes accumulated insight – especially in how to manage the inquiry as a whole.
The knack is to think backwards from the outcome you want the inquiry to reach, and to then think through about how to shape the process at each stage.
That is why the early stages in any inquiry – the setting of the terms of reference and the disclosure exercises – are so fundamentally important.
For although unexpected things can – and do – happen during the course of an inquiry, the findings of an inquiry and recommendations – and the allocation of any culpability – will usually be largely determined by what happens at the early initial stages.
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This is why the current contest of the government and the Covid Inquiry is profoundly important.
The government wants to itself decide what evidence is relevant to the Inquiry.
Part of this stance is because it appears the government was wrong-footed (or were not thinking or were distracted) when the very wide terms of reference were set.
Had the terms of reference been tighter then the government would not now be as worried at this stage.
The Covid Inquiry – rightly, on any sensible view – instead wants to make the key relevancy decisions.
With an inquiry with a smaller scope, the government may have grounds for pushing back on such ambitious claims.
But this is an inquiry into the biggest public health issue of recent times, and so the benefit of the doubt should be with the inquiry.
The chair of the Covid Inquiry is also a former senior judge (presumably with security clearance) who is well placed to make decisions on relevance.
And it is certainly the case that what is provided to the inquiry will not be published unless it is deemed relevant.
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One can understand why the Cabinet Office officials and lawyers want to keep tight control on what is disclosed to the inquiry.
The government may even litigate to keep this control.
Yet any sensible person will want the government to lose such a case (though it is the nature of litigation that there is no absolute certainty that the government would lose).
For if we want this public inquiry to make the most robust possible findings, and the best possible recommendations, then it needs access to all available information.
And so the Covid Inquiry should not be hindered by the government deciding for itself what is and what is not relevant.
For whatever goes into this inquiry, the “out” should not be garbage.
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Disclosure: I am a former central government lawyer.
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It seems the grounds for the Cabinet Office’s challenge (according to an article in the Guardian) is that to hand over the unredacted WhatsApp messages between Johnson and his aide Henry Cook “would be an affront to their privacy and the right to private policy discussion.”
I have the greatest of doubt that either of those grounds will get them very far.
I’m not a lawyer, but I am a core participant in a recently-concluded public inquiry (The Independent Inquiry into Child Sex Abuse). I provided a witness statement and about 70 supporting documents to the inquiry. Only a relatively small proportion of the supporting documents was published by the inquiry – basically only those documents referred to in evidence during the public hearings or referred to or quoted in the inquiry’s reports.
In fact, not everything I disclosed to the inquiry was even passed (after redaction) to other core participants. I presume the same is true of the documents provided by other core participants.
So it would seem that anything which the inquiry deems not relevant simply won’t be published, and the authors’ privacy will remain unimpaired. If course, if it is relevant then the Cabinet Office ought not to be trying to withhold it in the first place.
As for “the right to private policy discussion” the whole purpose of the public inquiry (set up by the government itself) is to see whether those private policy discussions resulted in appropriate public policy decisions. It is not the same as some member of the public making an FOI request for documents which is routinely denied on those grounds.
Question for DAG:
Why do you think the terms of reference were set so “very wide”? Apols if you covered when they were originally published.
Tom Lehrer said it first: “Life is like a sewer; what you get out of it, depends on what you put into it.”
Strikes me as “trying to shut the gate after the horse has bolted” The terms of reference were set so wide that it makes it difficult to see how it can be argued that material is irrelevant and therefore should be withheld. The cabinet office/government has lost control. It would seem impossible given the statements made so far that Hallet will back down. If it does end up in Court or with a judicial review the consensus seems to be that Hallet will win and therefore one wonders why the cabinet office/government want to rattle her cage.
It looks as if “Sir Humphrey” was on annual leave when the terms of reference were defined for the Covid Inquiry. As a casual layman observer, it seems to me that the terms of reference for Inquiries are usually drawn so narrowly that the Government ensures that what it does not want to be inquired into is out of bounds.
In this case it appears that the Government now wants to make itself judge and jury over the submission of permitted evidence retrospectively. If Hallett loses this tussle then whatever is left of the “public interest” in any future inquiries will have been effectively undermined and the Administration of the day will be able to redraw the terms of reference and alter the submission of evidence to conceal, or at least prevent coming to light, whatever evidence it chooses not to submit. Not a good precedent. May Hallett prevail.
One question: if it comes to it, which individual or individuals does Hallett prosecute? Ministers or Civil Servants or both?
What is the possible prejudice to the government if there is too much disclosure? It can’t be time expended, because it takes more time for the govt to weed out material that it claims is irrelevant than to disclose the entire bundle. It can’t be potential embarrassment, because the inquiry will decide what if any of the evidence will be published.
Ultimately the prejudice that concerns the government can only be the revelation of too many facts. Too much truth.
Perhaps setting the terms of reference so wide was “the blob”‘s revenge on certain political masters.
I think the government set the terms…
Though of course the prime minister of the day’s attention to detail is legendary.
Now that the deadline has been extended to Thursday the Government admits it doesn’t have the documents whose contents it previously stated were “unambiguously irrelevant”. Both statements surely cannot be reconciled. The Cabinet Office seems to be digging itself a bigger and bigger hole.
Misconduct in public office has a maximum sentence of life, and the penalty for frustrating the inquiry is much less.
They’re not digging a bigger hole, they’ve seen how big the hole they are in is, and are trying to climb into a smaller one.
I’ve just read in the media that the inquiry is likely to be temporarily suspended if it is still sitting during the next general election because the Tories might be adversely effected by the inquiry’s findings. This is deemed to be potentially politically sensitive. Is this really likely to happen? If it is, it would be a travesty of the inquiry’s purpose, part of which is to determine culpability for the disasters of the pandemic – which occurred in the Tory government’s watch after years of disabling Tory austerity policies. I’d have thought the inquiry would be essential to help wavering voters decide where to put their X on the ballot paper
Is there any reasonable prospect that the inquiry will be done by the time an election is due?
None at all, I should think, in which case the only reasonable course of action is to have the election now, before the inquiry gets going.
It is not as if the inquiry will be a closed book until it is finished and the dirt to date may be grubbier than the final conclusion.
Alternatively, we can probably expect emergency legislation to delay the election until the inquiry is completed…
Perhaps most people have made their minds up about voting and votes won’t just be decided by Covid issues.
That said, a suspension during the so-called purdah period must be a distinct possibility. Ministers can suspend an inquiry but have to consult the Inquiry chair first.
Similarly, terms of reference can be changed following consultation with chair.
Those are just 2 reasons why some considered the Inquiries Act to be far from ideal.
A naive question.
Why is it permitted to combine private and public material together?
I am a retired doctor, I would have been struck off for putting clinical material in my personal phone.
I’m sure it never used to be acceptable. Only since Mr Johnson came to power?
I think it is only permitted because nobody has moved to stop it.
It isn’t actually permitted and various laws could be brought to bear in it: if you think about it, it is unauthorized use of a computer system, so maybe the Misuse of Computers Act would bite.
Perhaps use of Whatsapp for government business should have been banned on the first day the app was used by those working in government.
> The chair of the Covid Inquiry is also a former senior judge (presumably with security clearance)…
Picking up on that aside, I believe that senior judges are not subject to government security vetting, for reasons of constitutional deference or comity. It seems unlikely then that Baroness Hallett would be subjected to clearance checks for quasi-judicial business even post-retirement.
Evidence from which this might be inferred and defined more precisely:
– “Judges of the High Court do not require any further form of security clearance or ‘vetting’ in order to see even the most sensitive material.” – Competition Appeal Tribunal (but presumably a reflection of a broader policy), Practice Direction 1/2022 para 2.3(1) https://www.catribunal.org.uk/sites/cat/files/2022-02/Practice%20Direction_Super-ConfidentialSuper-SensitiveMaterial_28Feb2022_0.pdf
– Statutorily, disclosure of interception material is exceptionally permitted to High Court, Crown Court, Circuit and High Court of Justiciary judges, Scottish sheriffs and Court Martial judge advocates – Investigatory Powers Act 2016 schedule 3 para 21, ex RIPA 2000 section 18(11).
– Hence, though “Coroners are not permitted by law…to view RIPA material”, “Circuit judges and more senior judges may do so in certain circumstances. Similar principles apply [out of policy alone?] to other sensitive material.” – https://www.bailii.org/ew/cases/EWHC/Admin/2016/3001.html#para52
The meaning of GIGO
When I started working in Information Technology, back in the late 1970’s, my Department Head discussed GIGO with me. He said that the correct definition should actually be “Garbage In, Gospel Out”, in that users would always choose to believe what the computer told them, whatever that was.
As you say, the Government lawyers are seeking to take advantage of this. Any deficiencies in the data provided to the Inquiry will be forgotten when the results are finally published.