2nd June 2023
The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.
In the words of the Covid Inquiry spokesperson yesterday:
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This is an unusual judicial review.
Usually judicial reviews are brought against the government, and not by the government.
This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.
Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.
Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:
This is not the first time the Govt has judicially reviewed its own inquiry. The MoD twice JRed Lord Saville as Chair of the Bloody Sunday inquiry over the protection to be afforded to military witnesses. A High Court judge & Court of Appeal ruled on the decision of a Law Lord.
— Dinah Rose (@DinahGLRoseKC) June 2, 2023
But that said, this judicial review is still unusual.
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What is this judicial review about?
From a legal perspective, it is about one word: jurisdiction.
To understand this we need to dig into some of the legal background.
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First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.
What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.
An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.
An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.
And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.
Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.
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Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.
This Notice is the main target of this judicial review.
This Notice is what the government is primarily asking the High Court to quash.
This judicial review is not the first attempt of the government to dislodge the Notice.
The first attempt was an Application dated 15 May 2023.
This Application was made under a provision of the Inquiries Act which provides:
“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”
But.
This Application was problematic.
You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.
No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.
As the Application stated:
“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”
And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):
“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.
“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.
“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”
“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“
The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.
The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.
A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.
Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.
And the Application did get the Inquiry to set out its legal position explicitly.
But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.
Now it is.
And here is the government’s statement of facts and grounds.
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What are the merits of the judicial review – that is, will the government win?
To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.
This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.
But.
There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.
Here we need to go back to the Inquiry being a creature of statute.
This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.
The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.
The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.
If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.
If the government can show this, then the Covid Inquiry loses – and the Notice falls away.
But.
The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.
In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.
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Finally, let us consider the greased piglet.
The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.
He appears to want to single-handedly sabotage the government’s legal case:
NEW: Boris Johnson says he is sending his unredacted WhatsApps (from May 2021 onwards) to the Covid inquiry direct.
He says he wants to pass the WhatsApps from his old phone to them too pic.twitter.com/bV0DcBrh2v
— Henry Zeffman (@hzeffman) June 2, 2023
On this, let us be careful.
There is industrial-scale misdirection afoot.
Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.
And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged “relevant” – and also note who he is proposing to conduct this all-important search.
We should not get too excited at such claims.
But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.
This is such an unusual judicial review – and in more than one way.
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Disclosure: I am a former central government lawyer.
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So, unless he was in the habit of including his personal phone in the WhatsApps from his ministerial one (in which case he is in even deeper doodoo than he might realise), the only stuff the Piglet is handing over is from subsequent to him being a minister. The enquiry is almost entirely bound to be focussed on the period up to his resignation, since that was the period of the Covid pandemic.
He has asked the Cabinet Office for help with handing over all other material, telephonic or otherwise, but clearly the Inept Cabinet Office won’t do that, because that is precisely the material it is seeking judicial review on whether it is obliged to release it.
Johnson really is an appalling mischief maker.
Great spectator sport. Shame we have to live in a country governed by these people.
I do find it hard to imagine Boris Johnson sitting still long enough to learn how to use WhatsApp, let alone use it in some effective way.
As for keeping a coherent diary …
“Woke up. Chased popsy around the bedroom then remembered popsy is my wife. Played with the fruit of my loins.”
“Got very, very drunk and used the cardboard wine box carriers to build a model of a Routemaster bus.”
“Like an Anthony Trollope, I rose early and worked solidly for two hours on my groundbreaking biography of William Shakespeare. I then turned to my day job, the hard earnt privilege of being Prime Minister of the greatest country in the world.”
“How like me was William Shakespeare” (with due apologies to Quentin Letts there for his insightful summation of Johnson’s biography of Winston Churchill).
No publisher, except one looking for a tax loss, is surely going to print Johnson’s diary, unless it is heavily edited and redacted?
In fact, would not the Government have taken a better course by drowning the Inquiry in Johnson’s ramblings in full?
No one has ever seen one of those bus models, of course …
One of his weirdest lies, the claim to make models of buses.
The real purpose of the government’s application for review of the Inquiry’s decision isn’t lost on most observers. It is to prevent the Inquiry from uncovering the incriminating facts.
Similarly Johnson’s posturing at being transparent. He has merely found different ways not to produce the incriminating messages. While claiming there will be no redactions in what he produces, he’s confining himself to produce only messages that he deems to be “relevant” while also claiming to be unable to produce any WhatsApp messages sent or received during the entire 15 months beginning with the start of the pandemic.
I really do have problems with imagining Boris Johnson doing more than thinking about such chicanery.
This is the man, after all, who was paid to write reviews about new cars which he had never driven, despite the cars having been left right outside of his house to try out.
Johnson the card who has never disputed the virtual nature of his written up driving experiences.
Is he, perhaps, leaving the Covid Inquiry donkey work to Wilf or has Dominic Cummings snuck back into his affections to fillet the messages?
Cummings, the now strangely quiet chap who was going to bring the house down around his ears with his informed revelations about the inside story of Covid and his, sorry, Boris Johnson’s government’s handling of it.
Is there anything stopping the chair from beginning proceedings for failure to comply with the S21 notice at this point? If the cabinet office loses the case would the chair be able to bring criminal proceedings based on the failure to comply with yesterday’s deadline, or would more time have to be allowed?
The action would probably be stayed or otherwise paused by the High Court, even if somehow it was commenced, until the JR was determined.
The JR judgment, assuming govt get permission for the review, is very likely to be appealed to CA and SC, especially if govt loses. So the delay could be considerable and the Inquiry would have to be re-timetabled substantially.
Many thanks for your detailed analysis.
I see that, in its Statement of Facts and Grounds, the Government is reduced to using what is clearly a ‘shit argument’ – the test in Peruvian Guano (1882).
Dead cats bouncing all over the place.
The news about Johnson gifting UK access to Aus has been immediately eclipsed by his calculated and disingenuous offer to share ‘relevant’ info from a device that could have (may have) been be wiped in a moment if he thought it might impact him.
Like cardboard buses vs £350m on the side of a bus, it has worked for him again.
It seems to me the Statement of Facts and Grounds is making a category error when treating the section 21 notice (“to provide any documents in [a person’s] custody or under [their] control that relate to a matter in question at the inquiry”) as akin to disclosure in civil litigation. In “Peruvian Guano” terms (a case which may deserve a DAG write-up, perhaps) this is not about advancing one party’s case, or damaging an adversary’s case, or even about a “train of enquiry” which leads to one of those outcomes. It is a false analogy.
This is an statutory enquiry, convened to inquire into events of public concern – in this case to examine, consider and report on preparations and the response to the pandemic in the UK up to June 2022.
The inquiry necessarily involves an investigation of government policy, and how it was made and implemented. Bizarre as it seems to me, I am lead to believe that quite a lot of that process happened through the medium of WhatsApp.
The information requested is actually relatively narrow, two sorts of physical documents, and two sorts of electronic files.
On the document, the former prime minister’s diaries will no doubt help with chronology; and his notebooks will help with what he was thinking. And it seems the former prime minister wants to give the notebooks to the inquiry, but they are not under his control.
These documents plainly “relate” to matters in question in the inquiry, whatever is mentioned in them. Rather than the Cabinet Office spending time and trouble redacting them, potentially reviewing thousands of pages of material to decide whether or not to blank or tear out specific words or pages, it makes perfect sense for the inquiry to say “give us the whole unredacted documents”.
And on the electronic files, again, the request is relatively narrow.
First, conversations on electronic groups “established, or used for the purpose of communicating about the UK Government’s response to Covid-19”. Yes, over two years, and there may be lots of messages, but these groups are plainly relevant to considerations of the government’s response to the pandemic.
Is the Cabinet Office seriously objecting to disclosing any of the above three categories of document?
So we come back to the second set of electronic files, the messages exchanged over two years with the 41 people listed in Annex B. Each of whom had a central role in the nation’s pandemic response.
Is this too wide? Again, the former prime minister seems untroubled. So where is the concern coming from?
There is a phrase in paragraph 21(2) of the Statement which I would suggest is indictive of its weakness. The Statement airily suggests material “might be personal or sensitive for a raft of different reasons” without particularising any of the items on the raft, although it earlier mentions music lessons, or illness (in a pandemic? who knew!) and later “personal and family information, including illness and disciplinary matters” and “comments of a personal nature about identified or identifiable individuals”.
This, I would suggest, gets to the crux of it. Some of the people on the list have said unwise things which they do not want to be published widely, and they do not trust the inquiry to keep them private.
If the Cabinet Office win this tussle it will undermine not only this but every future Inquiry, because the CO will decide, either in its Terms of Reference; or retrospectively, if they have been as inept as they have been in this, whether any inconvenient evidence is admissable or not. Not to mention the damage to the integrity of Government.
The High Court may decide in favour of the Cabinet Office but that will be on a point of law. The term “The Royal Courts of Justice” is just a name for buildings where they dispense the law, whereas the law’s relationship with justice is sometimes very tenuous indeed.
“…all unredacted WhatsApps I provided to the Cabinet Office” is ambiguous. Is it “I provided all WhatsApps, which are unredacted…” or “I provided all WhatsApps that are unredacted” (but I’m hanging on to those which contain stuff which is dodgy and which you may want to see the unredacted versions of if I send them to you)?
Are they thinking ahead to a possible future action for misconduct in public office or similar.
I’m no expert on WhatsApp but surely the groups Johnson and his ministers were members of had a further member ie the government record. Thus messages exchanged between them would be recorded on a separate device and there would be no need for ludicrous excuses about lost or compromised phones as individual ministers’ devices would not be needed to retrieve messages.
Of course I doubt this actually happened,