1st June 2023
Yesterday this blog set out how the Covid Inquiry may have set an elegant spring-trap for the Cabinet Office.
In essence, the Cabinet Office was (is) being tardy in disclosing various materials, and the Covid Inquiry created a procedural situation that concentrates wonderfully the minds in the Cabinet Office.
The Cabinet Office had asserted last Friday that somehow documents – the content of which the Cabinet Office had only recently and confidently declared as “unambiguously irrelevant” – were not actually in the government’s possession.
This was, ahem, odd.
The Covid Inquiry then deftly put the Cabinet Office to the test on this, with the Inquiry chair insisting that senior officials set out a detailed explanation of how any of this made sense, with the explanation to be attested by a signed statement of truth, that is under the pain of perjury.
The deadline for these statements of truth, or delivery up of all the requested documents, is later today (Thursday 1 June) at 4pm.
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The Cabinet Office’s broader objection to disclosure was (is) that the Inquiry’s request was outside of the Inquiry’s legal powers, and the Cabinet Office says that part of this jurisdictional objection is on privacy law grounds.
This privacy argument, which the government is emphasising in press releases and briefings, is weak if not hopeless.
The disclosed documents will not necessarily be published, only assessed for relevancy by the Inquiry – and the government is already using external leading counsel to assess the relevancy of the documents.
Whether this relevancy assessment is done either by the government’s external leading counsel or by the Covid Inquiry makes little or no difference from a privacy law perspective.
That said, it would be quite interesting to watch the government go to court with a claim under the Human Rights Act and Article 8 of the European Convention of Human Rights, especially as the government’s current policy is to repeal the former and to weaken the impact of the other.
(Perhaps the government could even apply to the European Court of Human Rights for an urgent interim ruling on privacy grounds, before the ability to make such applications is also curtailed. Ho ho.)
Anyway, this was the stand-off as of yesterday.
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And then – enter a greased piglet, running towards a messy situation for once, rather than away from one.
It was unexpectedly announced that former Prime Minister Boris Johnson had not only provided the Cabinet Office with all the relevant materials, but also that he had no objection to the documents being disclosed in full to the Inquiry.
Indeed, he said that such non-redacted, full disclosure should take place.
Well.
This, at a stroke, placed the Cabinet Office in an awkward predicament.
The Cabinet Office could no longer say that it did not have the documents.
The Cabinet Office now had the documents – and it also had a deadline of today to disclose them to the Inquiry.
And Johnson’s consent to the disclosure of the documents undermined the privacy claim.
Of course, the other parties to the WhatsApp messages in question also have privacy rights, and so Johnson’s expressed consent is not absolutely fatal to the privacy argument.
But Johnson has pretty much pulled a rug from under the feet of the Cabinet Office’s privacy claim.
It will be difficult to maintain a privacy claim in court when Johnson himself has waived any privacy rights.
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Why did Johnson do this?
It is tempting to think that it was mere spite.
The Cabinet Office had, of course, referred Johnson’s diary entires to the police without any notice to Johnson.
And now Johnson has, in turn, undermined the Cabinet Office.
But there may be an explanation other than – or in addition to – spite.
Johnson’s new lawyers must have advised him that there was no solid legal basis to resisting disclosure to the Inquiry.
If there was a sound legal objection to disclosure then it would be surprising for Johnson to happily volunteer the documents in the way he did.
Given that there would be no sound legal basis to resist disclosure, then it would seem Johnson made a virtue – or perhaps in his case, a vice – out of necessity.
(It is should also be noted that this volunteered disclosure also perhaps undermines the legal claims that were briefed to the press by his supporters only days ago, about him bringing data protection and other claims against the Cabinet Office for the referral to the police.)
Of course, it may be that the volunteered disclosure of Johnson of the documents to the Inquiry is not full and complete, and it is never easy to take anything Johnson says at face value, but that does not effect the significance of his consent to the Cabinet Office’s legal position.
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What is the Cabinet Office now to do?
One suspects it will ask the Inquiry for yet another extension – or at least it will want to do so.
The Cabinet Office could now disclose the documents in accordance with the request of the Inquiry.
Or the Cabinet Office, without an extension of the deadline, could breach the deadline of the Inquiry.
This would create a serious situation, where either the Inquiry or the Cabinet Office (or both) would need to commence some form of contentious legal process.
Here the Cabinet Office is not on strong ground, especially because of Johnson’s intervention.
And if the Cabinet Office do go for judicial review, and lose, then that will create a precedent far worse for the government than compliance with the request.
The Cabinet Office may therefore disclose the requested documents on this occasion, while reserving the (purported) right to litigate in future.
We will see.
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How has the Cabinet Office ended up in this mess?
As this blog pointed out recently, government lawyers have a great deal of experience in dealing with inquiries and disclosure exercises, and they are usually quite good at this.
One suspects there is muddle at a more senior level in the Cabinet Office.
This is suggested, for example, by the after hours (and desperate) letter to the Inquiry late last Friday.
The most reasonable explanation for such a late letter is internal delays in decision-making within the Cabinet Office.
A muddle is also suggested by the Cabinet Office resorting to instructing the most senior external government lawyer – the so-called Treasury Devil – to submit a lengthy legal(istic) submission on the “unambiguously irrelevant” content of various documents.
Invoking the Treasury Devil, other than in actual litigation, is a sign of ministerial desperation – as the Northern Irish Protocol affair indicated.
Ministers treat calling in the Treasury Devil as akin to summoning the fifth emergency service.
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As Alan Hansen would say, the Cabinet Office seems all over the place.
The Cabinet Office has got itself into disarray.
And it would appear that this disarray is because of strategic and tactical clumsiness at a senior level within the Cabinet Office, which has now been exposed by the combination a canny resolute Covid Inquiry and the sudden incursion of a greased piglet.
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Will the Cabinet Office meet today’s deadline, absent another extension?
Or will there be litigation of some kind?
Will one side blink, or the other?
Will there be some form of face-saving, fudged compromise?
Who knows.
But it is not a good thing that this comedy of errors is being performed on an early stage of a public inquiry of such immense importance.
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Disclosure: I am a former central government lawyer.
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When the legal dust has settled on this particular incident is there not also the wiser question remaining of using the Whatsapp medium to conduct government and parliamentary business?
Are you fingering the repeatedly inept Simon Case or repeatedly inept senior ministers for the ineptitude of the Cabinet Office?
I can’t help but think that people like Gus O’Donnell or Robin Butler wouldn’t have permitted a cock-up like this from their underlings or political masters. “An interesting approach, Prime Minister. Intriguing. Might I suggest a different one…….”
I have no idea who the muddle-maker would be here, but I suspect someone senior is making a muddle.
“All happy families are alike; each unhappy family is unhappy in its own way.”
When an organisation is running sensibly it may be possible to find the cause of a specific muddle. But at a certain level of dysfunction it probably won’t be possible to find a single cause. Or perhaps each observer will find their own preferred single cause depending on their position of observation.
Well, the Cabinet Office has nine ministers: Sunak, Dowden, and Jeremy Quin, were all elected in 2015 so in Westminster and Whitehall terms relatively inexperienced. Alex Burghart (elected 2017) is a bag-carrier. Mercer (also 2015) can have little to add. To some extent, Penny Mordaunt (2010), Lady Neville-Rolfe, Lord True and Lord Howe may be the adults in the room, all some with previous ministerial or civil service experience, but they have other responsibilities. Has any of these been involved in a long-running public inquiry?
And there are two permanent secretaries, Simon Case and Alex Chisholm. The latter was the first chair of the CMA and this is his second or third position as permanent secretary. And the former is the youngest Cabinet Secretary in record, a historian with a PhD supervised by Peter Hennessy, with a relatively short civil service career which includes some time inside Number 10 but little else.
No doubt there are people within the Cabinet Office with significant experience of investigations and inquiries. But (apart from Chisholm) I see little evidence for it at the top level. I wonder who is in charge.
It is a shame that relationships between the inquiry and the Cabinet Office seem so strained. If it is true that reviews will be done by external lawyers in any event, no doubt working to agreed protocols, there could have been scope for quietly agreeing a process under which the reviewing work was done by a joint team so each side could be confident that the right material was getting through (and only irrelevant material was being removed). But if the Cabinet Office has been taking an obstructive or restrictive line, with too many unnecessary redactions, you can understand the inquiry losing patience and just asking for everything. There was no need for this to turn into a public spat. Who benefits from that?
Given where we are now, I am tempted to cite Stalin’s famous question; “How many troops has the [Pope] Enquiry got? If push comes to shove, who is responsible for enforcing a (possible) legal decision against the Cabinet Office?
Interesting times!
The Inquiry makes an application to the High Court. Then the process is as usual.
“Then the process is as usual.”
Thank you – but what on earth is the ‘usual’ process for obtaining documents that the highest level of government does not want to give you? Do the police come and say to the Home Secretary “Sorry boss, but we need these documents”? Or bailiffs to the Cabinet Secretary or Justice Secretary?
My understanding (I may be wrong) is that in the US, under the separation of powers, each of the ‘Sources of Power’ – Executive, Legislature and Judiciary – has its own police service. I’m pretty sure that the Courts have no such weapon in the UK so what do they do when Government does not want to play ball?
The thing is, there so many talented muddlers in this government that identifying the culprit is not easy. Might be a minister from the Department of Health muscling in perhaps?
Likewise, there is probably more than one piglet, and the Whatsapp messages will provide evidence as to the identity of the other piglets, with perhaps an indication of the severity of their misconduct.
Enter, as DAG says, a greased piglet. A piglet so well-greased and skilled at evasion and with consummate rhetorical skills that he knows no other piglet can match him for evading effective censure.
Perhaps Johnson’s surprise consent to disclosure is part of a strategy to direct public attention, when the Inquiry finally publishes, towards other, less well-greased piglets.
Sounds a bit Macchiavellian, I guess. Who could imagine Macchiavellian conduct from any of the dramatis personae in this show.
“For I doubt not, but if it had been a thing contrary to any man’s right of dominion, or to the interest of men that have dominion, that the three angles of a triangle should be equal to two angles of a square, that doctrine should have been, if not disputed, yet by the burning of all books of geometry suppressed, as far as he whom it concerned was able.”
Hobbes, Leviathan, Chapter XI.
While one can never rule out cock-up as an explanation for the actions of any government department, Frederick William IV of Prussia had a point: “Liberalism is a disease. Its first symptom is a refusal to recognise conspiracy.”
As you point out, handing documents to the Inquiry did not lead automatically to immediate public disclosure or indeed any public disclosure. The Cabinet Office behaviour strongly implies that there is something in the material requested which is discreditable.
As you say Johnson is not always reliable. George Washington could never tell a lie. Lloyd George could never tell the truth. Johnson cannot tell the difference. However as Johnson’s motto is “In defeat malice, in victory revenge”, it is probable that the material will discredit Dominic Cummings or Rishi Sunak or both.
The Cabinet Office officials will of course be concerned that it will discredit some senior civil servants – as Sir Humphrey Appleby instructed Bernard, the Official Secrets Act is not there to protect secrets, it is to protect officials.
‘And then – enter a greased piglet, running towards a messy situation for once, rather than away from one’
might be up there, with some of your finest work :)
Every time the Cabinet Office, or the Cabinet Secretary, appear in news or commentary the impression that the Secretary is out of his depth is further reinforced.
In a normal world one ought to wonder how much longer he can keep his position, but it’s starting to seem like he is being deliberately retained as a convenient fall-guy / distraction.
You offer the possibility that Johnson’s disclosure of documents may not be “full and complete”. I may be mistaken, but I believe his statement at the time refers to WhatsApp messages and notes (or notebooks); whereas the Inquiry has requested WhatsApp messages, notebooks, AND diaries.
All very elegant and interesting. Boris and HMG fessing up and doing as they are told – we shall see. Let us hope not too much is missing from the files and that the relevant phone(s) have not gone for a swim.
Now the Covid Inquiry may get going, only to halt next year. But what is it likely to conclude? That the UK hospitals were too small and too few to cope with a pandemic. That the system was deliberately ‘run hot’ for efficiency and cost reasons and had little extra capacity. That any pandemic plan was gathering dust somewhere – who knows where. Quelle surprise.
Pandemics come along about every 50 to 100 years. We will have long forgotten any lessons by the next one. Then was Boris a bit slow off the mark? Well my view was so long as the butcher’s bill stayed below about 50,000 there was not much to worry about. Unfortunately the graph went up like the wall of a house – as the experts said it might. Something had to be done.
Anyway, lots to chew over. With any luck a few of the miscreants will be discomfited and we can laugh at them but otherwise the Inquiry is one of those necessary cathartic exercises that once over can be forgotten, like all the others. As is traditional the guilty will walk free and the innocent will be persecuted – that is the way of big mess-ups.
What a great post! I feel a little guilty at my glee in reading your excellent dissection of the cabinet office and Boris Johnson’s cockups, but I feel I deserve a little joy, in this constantly gloomy environment, where one often feels that the end of kindness and tolerance is nigh. Thank you for brightening my day!
It is high time they got some epts into the Cabinet Office.
Johnson’s readiness for collaboration and Sunak’s resistance to cooperate with the inquiry have an interesting aspect: according to reports, Boris Johnson acquired a new phone in May 2021, and his previous phone is currently inaccessible.
It is conceivable that his new phone may not contain much potentially damaging evidence. However, messages from his old phone are likely to remain preserved in the WhatsApp conversations of other
individuals involved.
Can anyone who believes that what Johnson handed over was actually unredacted and unedited please get in contact with me? I believe we have some business to conduct.
The terms of reference for the Covid Inquiry were set under the Boris Johnson premiership, albeit they were finalised after he had been shown the door but hadn’t quite been shoved through it and wasn’t paying any attention to anything except his future payments. I suspect there may be a degree of remorse at the exceedingly wide terms of the power the inquiry has to look into decision-making processes at the heart of government: the idea that disclosure of all intra-government messages at the time might be necessary in order for the Inquiry to determine the degree of concentration and distraction of the main players probably didn’t occur when the TsOR were drawn up.
But even if there is some institutional remorse at the Cabinet Office at their inner workings being spatchcocked by the Inquiry, I don’t think that explains the degree of last-minute reluctance on display here, nor do I think that Simon Case has ever displayed the kind of resolve necessary to stand up to Baroness Hallett at her steely best.
No, I think the problem behind this is Sunak. It’s all very typical of his “put off difficult decisions until the last minute in the hope they go away” style. Our former Chancellor may be concerned that future requests for information could cut a lot closer to his bones than the Baroness’s current limited in time to the “initial stages” only request.
I am now convinced there is some ‘material’ in all this that however irrelevant to the enquiry, some people fear may be unreasonably pushed into the light by ‘lefties’ with absurd views about the public interest.
I will remain convinced of that whatever actually comes to light. It’s really hard to think of anything else that looking this guilty might be worth.
If Heather Hallett is to have her wings clipped it will be a sad day for Parliamentary democracy and show that as a country the UK cannot be honest with itself.
Redacted disclosure may provide a compromise solution but not a convincing one.
The test question being played out is the boundary of Jurgen Habermas’s theory of the public sphere and other spheres of action.
My goodness. The latest developments are magnificent.
Will the inept Cabinet Office bring legal action against the former PM? Will the ICO litigate to keep private that which is already public? Will the ICO withdraw its litigation?
And does the former PM really mean he has handed over everything, or is it just the WhatsApp messages on his own phone, and thus not diaries, notebooks or WhatsApp messages on his Government phone?
All this and more in the next edition of…..Soap.
I do hope this isn’t irksome.
I wonder if the greased piglet’s intervention is because he knows that the current PM has content in the WhatsApp messages that will be politically very damaging. I am speculating, of course, but if the Cabinet Office is resisting release, it would seem likely that it is acting at the current PM’s request.
It sounds to me like Johnson knows the messages won’t be published, so claiming that he doesn’t mind is an empty claim.