A detailed explanation of the government’s judicial review of the Covid Inquiry – and why this judicial review is so significant

7th June 2023

This is a detailed post on the judicial review brought by the government of the United Kingdom against the Covid Inquiry.

This post has taken a few days to put together – and I apologise to those who were expecting daily posts over the last few days, but I hope this post was worth the wait.

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First, a point about civil – as opposed to criminal – litigation.

For a civil case to end up in court requires there to be many decisions (and indecisions) by various parties, and some of those decisions could have been made differently.

Some people – including even law students – assume that cases ending up with a final judgment is a natural, almost leisurely process, and the fact that a case has ended up in court requires no special explanation.

My commentary on civil cases comes from a different, more practical perspective, and it can be summed up in a simple phrase: how the Hell has this case ended up in court?

In other words: why was the dispute not settled, either by compromise or by one side not backing down, and why did at least one party think that the benefits of taking a claim to a full hearing outweigh the risks.

For there are risks in taking any civil case to a full hearing: you hand control of the case to an independent third party.

And so you can lose.

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The judicial review brought by the government against the Covid Inquiry is unusual and significant.

This post now sets out why the legal case is unusual, and then the post details what the judicial review is about and how we have got to this point: how the Hell is this case ending up in court?

The post concludes by setting out the significance of the judicial review.

This is, I am afraid a long post.

But at least most of the paragraphs are short.

And I have provided headings in bold underline and put the dates in bold to make the story easier to follow.

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Why is this judicial review unusual?  (But why is it also not unusual?)

This judicial review is unusual in a couple of ways, though not unusual in one other way.

First, it is more usual for judicial reviews to be brought against the government rather then by the government.

This is because a judicial review claim is the means by which the High Court is invited to rule on the legality of things done (or not done) by public authorities and some other entities that perform public functions.

Here, the public body which is to be reviewed is itself a public body: a public inquiry established under the Inquiries Act 2005.  That is is also another public body bringing the judicial review is incidental.

This is unusual – but it is not unknown.  From time to time public bodies do bring judicial reviews against other public bodies.

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Second, it is rare for a government to bring a judicial review against an inquiry which it has itself set up.

This is not absolutely unknown, as the Saville Inquiry into Bloody Sunday was successfully judicial reviewed by the then government.

In that case, which was before the 2005 Act existed, an appeal judge said (and I have broken this passage into sentences for flow):

“It is accepted on all sides that the Tribunal is subject to the supervisory role of the courts.

“The courts have to perform that role even though they are naturally loath to do anything which could in any way interfere with or complicate the extraordinarily difficult task of the Tribunal.

“In exercising their role the courts have to bear in mind at all times that the members of the Tribunal have a much greater understanding of their task than the courts.

“However subject to the courts confining themselves to their well-recognised role on applications for judicial review, it is essential that they should be prepared to exercise that role regardless of the distinction of the body concerned and the sensitivity of the issues involved.

“The court must also bear in mind that it exercises a discretionary jurisdiction and where this is consistent with the performance of its duty it should avoid interfering with the activities of a tribunal of this nature to any greater extent than upholding the rule of law requires.”

(Hat-tip – Dinah Rose KC)

So there is nothing inherently wrong about a government seeking a court to rule on the legality of an inquiry.

But it is rare, and this may be the first time it has happened for over twenty years.

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But.

In one other way, however, this judicial review is not odd – and, indeed, is fairly conventional.

That is because the judicial review is for the High Court to rule on what a statutory provision means.

This is pretty standard work for the Administrative Court – that is, the specialist part of the High Court that hears judicial reviews at first instance.

In this case, the question before the court comes down to whether a provision in the Inquiries Act allows the Inquiry to do a certain thing.

The government says the legislation does not permit what the Inquiry wants to do; the Inquiry says that the legislation does permit it; and the High Court will decide the point.

In more legalistic terms, the High Court is being asked to “construct” the statutory provision and to “interpret” what the law means in this particular case.

If the government wins outright, the High Court may “quash” what the Inquiry has done – making both a formal notice and a formal ruling upholding the notice disappear in a puff of legal logic.

But if the Inquiry wins, then what the Inquiry did still stands, and the government has to comply with what the Inquiry wants.

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What is in dispute?

Now we come to what is in dispute, and this goes to the heart of the Covid Inquiry and what the Inquiry wants to do.

The dispute is ultimately about power – and, in particular, it is about who exercises ultimate power.

In essence: who gets to decide whether a document (or other evidence) is relevant to the Inquiry?

Is is the Inquiry itself?

Or is it the person – here, the government – being asked for the document (or other evidence)?

And can that person simply assert that the requested document is not relevant and so not have to disclose it?

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In more technical terms this contest of power is about what lawyers call “jurisdiction”.

The Inquiry asserts that it has the jurisdiction to formally request specified documents (and other evidence) under the Inquiries Act that relate to – or potentially related to – the Inquiry.

And, crucially, if the Inquiry’s request is not complied with, the Inquiry has certain powerful methods of enforcement, including applying for criminal sanctions.

For, as so often in the law, real power comes not just with a right to request a thing, but with the power to enforce that request in the face of resistance or reluctance.

But the government says No.

The government says the Inquiry does not have the jurisdiction to request documents when those documents are not relevant to the Inquiry, even if the Inquiry considers them potentially relevant, and that the Inquiry has to accept the government has the last word on whether this is the case.

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The law – the soft Rule 9 Requests and the hard Section 21 Notices

Now we turn to the detail of the dispute, and we need to look at a couple of legal texts: the relevant provisions of Inquiries Act and the Inquiry Rules made under that Act.

Under Rule 9 of the Inquiry Rules, an inquiry has a general power to request evidence and documents from a person:

This can be said to be the weaker request power.

There is then what can be said to be a stronger power in section 21 of the Inquiries Act:

It is a criminal offence for a person not to comply with a section 21 request without a reasonable excuse, and the Inquiry also can apply to the High Court for enforcement action.

Now let us focus on one part of section 21 in particular (emphasis added):

“The chairman may by notice require a person […] to provide any documents in his custody or under his control that relate to a matter in question at the inquiry“.

The words in bold are the most important words in this legal case.

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The usual approach for an inquiry is to send a Rule 9 request first, and then only if there seems to be some difficulty to proceed to a section 21 Notice.

Soft, then hard.

You will see that Rule 9 is not qualified in what documents the Inquiry can ask for: “The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.”

But if an inquiry wants to take a tougher line, and to back the request with the pain of sanctions or enforcement action, then the request can only be for documents in a person’s custody or under his control “that relate to a matter in question at the inquiry”.

But if an inquiry issues a section 21 Notice that requests a document that does not “relate to a matter in question at the inquiry” then that inquiry is acting outside of its legal powers.

The inquiry would be acting, as a lawyer would say, “ultra vires”.

And this, in legal terms, is what the current dispute is about.

It is about the correct construction of section 21 and the true interpretation of that phrase.

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The Inquiry Terms of Reference

So what would “relate to a matter in question at the inquiry” in the context of the Covid Inquiry?

Here we now need to look at the Terms of Reference for the Covid Inquiry, as it is the combination of section 21 and the Terms of Reference which provides the parameters of what the Inquiry can and cannot request backed by sanctions and enforcement.

The Terms of Reference are set out here – and they should be read in full by anyone following this inquiry.

The particular term of reference for this dispute is about “how decisions were made, communicated, recorded, and implemented”.

(Interestingly, the draft terms of reference which were subjected for consultation included the text “how decisions were made, communicated and implemented”.  The “recorded” was added following the consultation exercise.)

The government agreed these Terms of Reference – and so the Terms of Reference took effect under the Act.

This means that section 21 has to be read in tandem with the Terms of Reference.

This also means that the government really only has itself to blame if it now considers the Terms of References as being too wide.

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Combining the law and the Terms of Reference

Now, if we combine section 21 and the adopted Terms of Reference, we can arrive at the following proposition:

The Covid Inquiry chair may by a section 21 notice require a person to provide any documents in their custody or under their control that relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented.

This proposition sets out, I think, the correct jurisdiction of the Inquiry chair for issuing the Section 21 Notice which is in dispute in this case.

The issue is whether this jurisdiction covers documents requested by the inquiry which the government insists are “unambiguously irrelevant”.

You will see that section 21 does not use the phrase “unambiguously irrelevant” – or even “irrelevant” or “relevant”.

Section 21 instead says “that relate to”.

(Isn’t law fun.)

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The importance of the redaction protocol and the scope of the second module

We can now turn to the detail of the dispute, with the help of various documents which are either publicly available or have been provided to journalists.

Once the Inquiry started work it published a Protocol on the Redaction of Documents.

One paragraph of this protocol is significant (emphasis added):

The Inquiry also separated its work out into “modules”.

The first module is on the preparedness of the United Kingdom to the pandemic – and it is under that module the public hearings have just started.

The second module is on “how decisions were made, communicated, recorded, and implemented”.

The Inquiry articulated what it understood this general (and wide) term of reference to mean:

By February 2023 the Inquiry had further articulated its understanding and wrote to former Prime Minister  Boris Johnson, care of the Cabinet Office, as follows:

“Module 2 will consider and make recommendations about the UK’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 until Covid-19 restrictions were lifted in February 2022 (“the specified period”). It will pay particular scrutiny to the decisions taken by you and the Cabinet, as advised by the Civil Service, senior political, scientific and medical advisers, and relevant Cabinet sub-committees, between early January and late March 2020, when the first national lockdown was imposed.”

Adding:

“We have defined “core political and administrative decision-making” as those decisions that were taken by the you/No. 10, the Cabinet and Cabinet Committees (including Ministerial Implementation Groups ‘MIGs’) and the Lead Government Department (“LGD”), supported by senior officials and advisers, to manage the emergency response to the Covid-19 virus. We wish to understand the role that you played within that decision-making process between the beginning of January 2020 and 24 February 2022, with a particular focus on the period 1 January 2020 to 26 March 2020.”

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The origin of the dispute: the February letter to Boris Johnson

The 3 February 2023 letter quoted above was a Rule 9 Request (and not a Section 21 Notice) and its main purpose was to request a witness statement from Johnson covering some 149 questions.

But at the end, the letter also requested:

“[…] details and copies of:

a. Key emails and other correspondence in relation to the issues you have
discussed in your witness statement;

b. Any informal or private communications about the UK Government’s
response to Covid-19 of which you were part including but not limited to
informal groups (such as text messages and WhatsApp groups) or
private messages or email communications with Ministers, senior civil
servants or advisors;

c. Please provide a list of any such groups of which you were part of; and

d. Any contemporaneous diary or notes which you made during the
specified period relating to your involvement in the UK Government’s
response to Covid-19 and provide copies of any such information.”

Similar requests under Rule 9 for witness statements and documents were sent to other current and former ministers, officials and advisers.

The Cabinet Office is the department responsible for dealing with these requests.

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The Cabinet Office delays

Time passed.

Work was slow at the Cabinet Office on meeting the Rule 9 requests, in respect of both Johnson and other figures.

Part of the reason for the delay seemed to be the desire of the government to redact materials prior to disclosure to the Inquiry.

Looking at the correspondence, it seems that the issue of delay (rather than who redacted what) was the biggest concern to the Inquiry.

What was causing the delay?

Well, lawyers of course.

Part of the delay was an elaborate, multi-stage lawyer review.

A government email to the Inquiry on 20 March 2023 described to the Inquiry that the redactions were being considered by “B level Panel Counsel”, and then “A level Counsel”, and then – finally – a KC.

It appeared that the government was using (and paying for) three – three! – external barristers of increasing seniority to review each redaction.

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The Inquiry gets formal

After a great deal of informal discussion between the Inquiry and the Cabinet Office, and after various missed deadlines, the Inquiry sent a formal letter on 24 March 2023.

At this stage,  the term “unambiguously irrelevant” had not been used in correspondence, and perhaps it had not even yet been coined.

Instead, the discussion was about “irrelevant and sensitive” (ie national security or legally privileged) material.

The Inquiry wrote to the Cabinet Office and reminded the Cabinet office of the Inquiry’s redaction protocol:

“It is important that the Inquiry receives documents from Material Providers in clean, unredacted form. Any departure from this approach must be discussed with the Inquiry’s legal team before materials are provided. The provision of documents must not be delayed on grounds that the Material Provider seeks redactions to the material.”

The Inquiry then added:

“It is understood that notwithstanding the above, which has been the Inquiry’s consistent position on this issue, the Cabinet Office is in the process of redacting ‘irrelevant and sensitive’ (“I&S”) content from otherwise relevant communications. Furthermore, it is clear that this process is delaying the provision of relevant materials to the Inquiry.”

The final part of the Inquiry’s letter was firm and stark (emphasis added):

“…we require confirmation from the Cabinet Office by 4pm on Thursday 30 March that clean, unredacted copies of exports from all potentially relevant WhatsApp communications will be provided for the Inquiry’s consideration. In the absence of confirmation by this date, I am instructed that the Chair will issue a s.21 Notice to compel disclosure from all individuals who have confirmed they hold relevant materials.”

The Inquiry was now threatening to invoke section 21.

Soft, then hard.

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The Cabinet Office lawyers-up even more

Even before the above letter was sent by the Inquiry, officials at the Cabinet Office had told the Inquiry that legal advice was being sought.

The explicit threat of a Section 21 Notice would have made legal advice more urgent.

In my opinion, this seems to be when the Cabinet Office decides to instruct First Treasury Counsel – the most senior external government lawyer, known as “the Treasury Devil“ – as it seemed the Cabinet Office knew they had a potential and rather serious legal problem.

The next letter of the Cabinet Office to the Inquiry on 30 March 2023 is markedly different in tone and content to the previous government letter.

The letter also switches to “unambiguous irrelevance” as the (supposed) test, instead of “irrelevant and sensitive”.

It would seem that the government lawyers adopted this phrase – which, again, does not actually appear in the legislation – as its gloss on what “relate to a matter in question at the inquiry” means.

If this is correct, then this means that the government’s litigation tactics, and even strategy, was adopted around this point.

The legal(istic) points contained in this letter are pretty much the same in both substance and form as those the Cabinet Office relies on when challenging the Inquiry and in applying to the High Court.

Indeed, the key legal points are now copied (and, ahem, pasted) from document to document.

These points are, in summary (1) a full challenge to the jurisdiction of the Inquiry to issue a Section 21 Notice and (2) a further argument about the privacy rights of the individuals involved, including under the Human Rights Act and Article 8 of the European Convention of Human Rights.

(That second argument is weak, and it is also somewhat grimly ironic, given the government wants to repeal the Human Rights Act and weaken Article 8 protections generally.)

If the above assessment is correct, the Cabinet Office was preparing for this judicial review three months ago.  If so, somebody senior at the Cabinet Office had decided as far back as March that the Inquiry may need to be (in effect) put back in its box on section 21.

Why?

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Why is the Cabinet Office fighting this case?

What explains the Cabinet Office starting to prepare in March 2023 for a judicial review against the Inquiry which it finally makes in June 2023?

There are two plausible answers to this – one which accords (broadly) with what the government has expressly said, and one which is an alternative and cynical explanation.

The less (or not) cynical explanation is that the government does not want this Inquiry or other inquiries under the Inquiries Act to overstep their legal mark.

Inquiries under the Inquiries Act are what lawyers (delightfully) call “statutory creatures” or “creatures of statute”.

This means no inquiry – not even one into how the government dealt with the biggest public health emergency of recent times – has absolute or inherent power.

No inquiry can simply do what it wants and request what it wants, threatening to use its formidable legal powers under the Act so as to get its way.

Taking this explanation at face value, the government’s concern is not directly about this inquiry, but about all inquiries yet to come under the Act.

The Covid Inquiry thereby needs to be tamed on this view, not because it is an inquiry about Covid – but because of the practical (if not legalistic) precedent that would be set if the Cabinet Office complies with the current requests.

And notwithstanding the cynicism of you and others, there will be government lawyers and officials who will hold this view sincerely, that is in good faith.

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But.

There is an alternative cynical view.

This view is that those connected with the government – especially current (and former) ministers and senior officials – are reluctant for the Inquiry to see all the communications that were passing between them, especially in the early days of the pandemic.

The Inquiry wants to see the communications in context.  For example, what were the other matters which were being prioritised over dealing with Covid?

To take one striking instance: of course, the minutes of what happened at COBR meetings about Covid will be disclosed, but what were ministers doing instead of attending COBR? And so on.

The Inquiry’s view is that this contextual information will enable it to provide a fuller account of “how decisions were made, communicated, recorded, and implemented” – the relevant, and explicit, term of reference of the Inquiry.

And if we return to the proposition set out above: the Inquiry chair may by a section 21 notice require a person to provide any documents in their custody or under their control that relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented.

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Context is everything, but not anything – the importance of the words “relate to”

One wise law lord once said that context is everything.

But this, of course, does not mean context is anything.

Context requires there to be some connection to the, well, text.

To seek contextual information is thereby not an exercise in anything goes.

But.

In the current case, the Inquiry is not actually asking for random information.

The Section 21 Notice which it eventually served on the Cabinet Office details in an annex the individuals, and their positions, whose WhatsApp messages are being requested.

Take a moment to look at this list.  None of those mentioned are private individuals:

And so, applying the combination of the wording of section 21 and the terms of reference, the Inquiry’s position is that the WhatsApp messages between these figures and Johnson “relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented” in that the messages provided context for the decisions made (and not made).

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From the formal 30 March 2023 letter to the judicial review

Once the Cabinet Office has invoked (summoned?) the Treasury Devil and sent the 30 March 2023 letter, the lines of the dispute were set.

It was only a matter a time before the Inquiry issued the five-page Section 21 Notice.

(Though the Inquiry plainly wrong-footed the Cabinet Office by also including in the Notice a request for Johnson’s notebooks and diaries – which it had also asked for in the February letter.  It would seem the Cabinet Office had focused on getting legal advice on the WhatsApp messages.)

For some reason, the government chose not to immediately judicially review the Section 21 Notice when it was issued on 28th April 2023.

Instead the government made an application on 15th May 2023 under the Inquiries Act for the Inquiry to revoke the Notice.

This made little or no legal sense, as such an application presupposed the Notice to be legally valid.

This is because one cannot revoke (or vary) something which is ultra vires to begin with.

The application was therefore a form of phoney war, and the application was deftly batted back by the Inquiry chair in a succinct ruling on 22nd May 2023.

And so the Cabinet Office launched its judicial review on 1 June 2023.

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Shadow-boxing and actual boxing

Perhaps the shadow-boxing of the application was an exercise in getting the Inquiry to set out its legal position in advance of a formal judicial review.

Or perhaps it was hoped that a compromise could be reached between the Inquiry and the Cabinet Office so that there would be no need for formal litigation.

Who knows.

But now the judicial review has been issued there will be (unless something now unexpectedly happens) a judicial determination.

This will end up in court.

But there is a risk for the government.

The decision of the High Court (which, of course, may be appealed – perhaps ultimately even to the Supreme Court) may not be the determination the Cabinet Office will want.

A court may decide against the government and give an expansive judgment, affecting not only this inquiry but also future inquiries.

Sometimes it is better not to litigate than to risk an adverse legal precedent.

But somebody senior at the Cabinet Office – or in government generally – thinks that this legal case is worth the risk of an adverse decision.

And, similarly, the Inquiry chair believes this is not a matter on which the Inquiry can back down.

How the Hell has this case ended up in court?

This case has ended up in court because both the government and the Covid Inquiry see the risks of an adverse final judgment as being outweighed by the benefits of a welcome final judgment.

And neither side sees compromise (or backing down) as a better outcome.

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The significance of the case: what does this judicial review signify?

Again, High Court hearings do not come about by accident: they are the results of decisions by individuals.

And contested legal cases – where both sides have decided it is better to end up in court than to back down – require explanations for both sides.

Here we have a government that has something to lose: either (on a non-cynical view) its ability to tame inquiries overstepping their marks or (on a cynical view) control over unwelcome contextual information.

(Reply guys on Twitter will also say “or a mixture of both”.)

We also have an Inquiry which also has something to lose: ready access to possible contextual information that “relates to” its terms of reference.

And (unless the case suddenly settles or is withdrawn) one side is now going to lose – even if there are appeals.

In my view, the result of this case will go to the very shape of the Inquiry.

Supporters of the government may maintain that a more restricted shape is entirely appropriate, and the Inquiry cannot and should not see “unambiguously irrelevant” material.

Even taking that view at its highest, this is a crucial legal contest – and if the government wins, then the wings of the Inquiry are clipped in what sees as material that “relates to” the Terms of Reference.

But the government may win – it may convince the court, either at first instance or on appeal, that in this instance the correct construction of the Act and the true interpretation of its provisions means that the Inquiry over-reached with the Section 21 Notice.

This is not a case which the government is bound to lose – even if the privacy element of its case is weak (especially given the now expressed view of Johnson that he is waiving his privacy rights), that is not the government’s entire case.

Yet it is also not a case which the government is bound to win.

Senior figures in government know this – and they have known what is really at stake since at least the March 2023 correspondence.

And yet they are willing to litigate anyway.

Whatever the wider significance of this case, there is no doubt that for the government – and for the Inquiry – this legal clash at the start of this Inquiry is very significant indeed.

The scope of the Covid Inquiry is at stake.

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Disclosure: I am a former central government lawyer.

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