Category: Accountability

One year on from one thing, sixteen months on from another thing…

8th September 2023

On this anniversary of Elizabeth II’s death, we are still in the legislative session commenced with the Queen’s Speech of May 2022 – one monarch and two prime ministers (and several cabinet ministers) ago.

This, by itself, illustrates the drift of the current government. Neither Truss nor Sunak when they commenced their premierships signalled a new legislative programme. Instead they carried on with what was, in any case, primarily a gimmicky pick-and-mix miscellany of poorly conceived legislative proposals.

And so we are are still, in one sense, in the age of Johnson. And he is now not even in parliament, let alone the head of a government pushing through his last legislative package.

The knock-on effect of this is, as my Substack has previously averred, that the government is running out of time before the next election to pass legislation – especially anything fundamental or controversial. Many will think this a good thing, but it is not the sign of a government with direction or drive.

We are one year on from one thing, sixteen months on from another thing, and still perhaps a year away from that one thing, a general election, that can bring about any meaningful change.

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What is a section 114 Notice?

7th September 2023

Birmingham has more canals then Venice and more hills than Rome – you will be told – and it has the largest local authority in Europe and it is the only city in the United Kingdom, other than London, with a population of over a million.

And the city council now also has a section 114 notice – you can click here to read it.

The notice is under section 114(3) of the Local Government Finance Act 1988 (coincidentally the legislation that introduced the poll tax).

The provision is simple:

“The chief finance officer of a relevant authority shall make a report under this section if it appears to him that the expenditure of the authority incurred (including expenditure it proposes to incur) in a financial year is likely to exceed the resources (including sums borrowed) available to it to meet that expenditure.”

The report is worth reading in full as a snapshot of a council in trouble and as an account of how it got into that trouble.

I am a writing a longer piece about this, but I thought this would be a useful post.

“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

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“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

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There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

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But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

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In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

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Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Understanding the government’s judicial review of the Covid Inquiry

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:

“At 16:00 today the Chair of the UK Covid-19 Public Inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the Chair’s Ruling of 22 May 2023.”

 

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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:

 

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:

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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

How the intervention of Boris Johnson has affected the stand-off between the Cabinet Office and the Covid Inquiry

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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Why who controls the flow of evidence is crucial in any public inquiry

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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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

“Not a promising start” – a close read of the Covid Inquiry ruling against the Cabinet Office, and why it may be very significant

24th May 2023

(This is the first in a planned series of posts on the Covid Inquiry – the next will be on Boris Johnson’s lawyer difficulty.)

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Today the Covid Inquiry made what may be a significant ruling that could shape how it will go about obtaining information and documents from unwilling to provide those documents.

This post explains today’s ruling – and sets out what the ruling may signal about the inquiry as a whole.

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To begin: public inquiries are powerful legal creatures.

Very powerful.

That is why governments tend to avoid having inquiries under the Inquiries Act 2005 if it can possibly be avoided.

For example, the Daniel Morgan panel inquiry was not under the 2005 Act.

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One of the immense powers of a public inquiry is in obtaining evidence.

The key provision here is section 21, which should be read in full by those following the Covid inquiry generally.

Section 21 provides:

We also need to look at Rule 9 of the Inquiry Rules 2006 for how an Inquiry can obtain information without resorting to a section 21 notice:

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Real legal power, however, lies not so much in having a right to request something, but in what happens if that request is denied.

Here we go to section 35 of the Act:

Whack.

Not complying with a section 21 request is a criminal offence.

There are narrow exceptions to compliance with a section 21 request – for example if a document is privileged.

But subject to narrow exceptions, there is an obligation to comply with a section 21 request to provide evidence.

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In respect of documents, the Act provides that a person is required to provide documents “that relate to a matter in question at the inquiry”.

The crucial word here is “relate”.

It is a broad word, and it means that the scope is far wider than say a requirement to provide documents that are, say, directly relevant.

Documents that can “relate” to something can merely be documents that, although not directly relevant, contextualise other documents.

For example, a document may show what a decision-maker may have been preoccupied with at the same time a more relevant document was created, and so on.

And the provision prompts an obvious question: who decides whether a document “relates” to the work of an inquiry?

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The Covid Inquiry has broad terms of reference (and these also should be read in full by anyone following the inquiry).

And it seems earlier this year, the Inquiry was in correspondence with the Cabinet Office.

Significantly, the Inquiry was only relying at this early stage on requests under Rule 9 – and not (yet) the supercharged legal power under section 21.

According to documents released by the Inquiry today, there was substantial correspondence earlier this year between the Inquiry and the Cabinet Office.

But it seems the Inquiry was frustrated with what was (not) being disclosed and what was being redacted.

And so on 28 April 2023 (though not published at the time) the Inquiry chair issued a Section 21 notice:

Such a notice has to be taken seriously – very seriously.

The government, however, contended that it did not need to comply.

And instead made an application under the Act for the notice to be revoked.

The Cabinet Office even went so far to instruct the Treasury Devil – the government’s most senior external legal adviser – to set out the application.

And so we have a ten-page legal(istic) submission which looks far more like a court pleading than anything else.

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The primary objection of the government is what it calls “jurisdictional”.

In essence, the government contends that the Inquiry cannot order disclosure of documents which are “unambiguously irrelevant”.

The published application is very reliant on the phrase “unambiguously irrelevant” – even though that is not expressly mentioned in section 21 of the Act.

It is almost as if the government’s lawyers have devised this test for themselves, and now insist it has to be applied.

Of course, the section 21 power is for documents “that relate to a matter in question at the inquiry” – and here we have to remember that the Covid Inquiry’s remit is very wide.

In simple terms, the government’s position is that if a requested document does not relate to a matter in question at the inquiry then the Inquiry has no power to order disclosure.

And the crucial point is that the Cabinet Office says it is for them to decide whether a document is “unambiguously irrelevant” – and not the Inquiry:

“It is also important to note that the Cabinet Office has explained, in correspondence, the measures it has taken as a result of which the Inquiry can be assured that the appropriately high threshold has been, and will be, accurately and properly applied. The ability of parties to distinguish between potentially relevant material (including adverse material) and unambiguously irrelevant material is seen day in and day out in all litigation contexts. Such judgements are made by qualified legal representatives, owing professional obligations beyond those owed to their client, up to and including Leading Counsel.”

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The Application was considered by the chair of the Inquiry.

And the chair of the Inquiry said No.

Her ruling was published today, and it takes the government’s objections to jurisdiction head on.

The chair observes:

“The Notice was, as I have explained, premised on my assessment that the entire contents of the documents that are required to be produced are of potential relevance to the lines of investigation that I am pursuing.

“The essential thrust of the application therefore appears to be that this assessment is irrational, and thus there was no power to issue the Notice, because the Cabinet Office has reviewed the documents for itself and has concluded that those parts which are sought to be withheld from the Inquiry are “unambiguously irrelevant”. 

“I do not accept that my assessment was irrational.”

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(Please note I have broken up longer paragraphs from the quoted documents for flow.)

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The chair then makes a strong point about breadth and who makes the choice (emphasis added):

“First, it is self-evident that the Terms of Reference of this Inquiry are of great breadth. It is equally obvious that in order to discharge those Terms of Reference I will need to undertake a large number of extremely diverse lines of investigation.

“Those lines of investigation are bound to involve factual matters that are not specified in, and which may be collateral to, not only the issues identified in the Terms of Reference itself, but also the issues particularised in the published provisional scope document for any particular module of the Inquiry, and/or any more detailed lists of issues that the Inquiry may provide to Core Participants.

“For example, in order to evaluate the response of the government and/or of any individual Minister to the pandemic, it may be necessary for reasons of context for me to understand the other (superficially unrelated) political matters with which they were concerned at the time.

“Such matters may acquire greater significance where it appears to me, or it is otherwise suggested, that a Minister dealt with Covid-related issues inadequately because he or she was focusing (perhaps inappropriately) on other issues.

“For similar reasons, I may also be required to investigate the personal commitments of ministers and other decision-makers during the time in question.

“There is, for example, well-established public concern as to the degree of attention given to the emergence of Covid-19 in early 2020 by the then Prime Minister.

Moreover, the need for me to investigate allegations that have been aired publicly regarding disagreements between members of the government and breaches of Covid-19 regulations by those within government provides a further basis upon which material such as diary arrangements and content which may not appear to relate directly to the response to Covid-19 are of at least potential relevance to the investigations that I am conducting.

“The fact that the Cabinet Office has asserted that matters such as “entirely separate policy areas with which the Inquiry is not concerned” and “diary arrangements unconnected to the Covid-19 response” are “unambiguously irrelevant” to the work of my inquiry 4 demonstrates that it has misunderstood the breadth of the investigation that I am undertaking.”

*

“Misunderstood.”

Ouch.

The chair continues:

“Second, it does not follow from the fact that the Cabinet Office has itself reviewed material, and considers it “unambiguously irrelevant”, that my assessment that the material is of potential relevance is irrational.

“The application seeks to establish a principle that the Chair of a public inquiry will be acting ultra vires in requiring the production of material where the recipient of a section 21 notice declares that material to be “unambiguously irrelevant”.

“I reject that proposition.

“The key flaw, as it seems to me, is that it wrongly allocates to the holder of documents, rather than to the inquiry chair, the final decision on whether documents are or are not potentially relevant to the inquiry’s investigations.”

Well, quite.

*

She adds:

“It cannot be right that a mere assertion by such a person of “unambiguous irrelevance” has the effect of extinguishing any power in the inquiry to require the production of the documents so that it can determine for itself the relevance or otherwise of the material.

“In this case the document holder is a government department, but, in another, it might be, for example, a private individual or entity suspected of criminality.”

*

And then the ruling gets very interesting, as she illustrates one particular point (again emphasis added):

“…it is apparent that some important passages (relating for example to discussions between the Prime Minister and his advisers about the enforcement of Covid regulations by the Metropolitan Police during the public demonstrations following the murder of Sarah Everard) were initially assessed by the Cabinet Office to be “unambiguously irrelevant” to my investigations and therefore redacted from copies of the WhatsApp messages initially provided to the Inquiry.

“Whilst those redactions have now (very recently) been removed, it was not a promising start.”

Not a promising start.

*

The Application was dismissed, and the government has to disclose the requested documents by next Tuesday 30th May 2023.

The Cabinet Office may make a judicial review application to quash the notice – but unless it takes such a step, the only choice now is compliance or criminality.

*

More generally, the chair’s ruling may be highly significant: an early sign that this Inquiry is not to be messed with, and that it will see through legalistic disclosure points of the government.

As such it is a very encouraging development.

**

I plan to do a further post in the next day or two focusing on Boris Johnson’s particular problems with this disclosure decision.

***

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And if Braverman goes, then what?

22 May 2023

Another week, another senior cabinet minister facing demands to resign.

This time it is the Home Secretary Suella Braverman – and the key question is whether she misused her office and advisers in respect of dealing with what followed from a speeding offence.

And this means the key question is again not anything to do with policy.

Of course: this Home Secretary should not even be in office.

As this blog set out in plodding detail, her two accounts of that last incident did not add up.

In particular, the statement in her (last) resignation letter that “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” was simply not correct.

But it doesn’t matter; and it never now matters.

The detail of what happened last time is so much ancient history – even though it was only a few months ago.

The question of whether she stays on is one of pure politics – not law, not policy, not administration.

Does the Home Secretary have the political power to stay on?  Or does the Prime Minister have the political power to get rid of her?

One should not underestimate the Prime Minister in these situations: he deftly got rid of Dominic Raab by the expedient of delaying any decision to endorse him.

The Prime Minister did not become a head boy at a big school or a senior banker without knowing how to play certain games.

And so we may now also be seeing again the former Goldman Sachs banker “managing out” a troublesome junior colleague.

Who knows.

But perhaps those (of us) who would want to see Braverman no longer at the Home Office should be careful about what we wish for.

Her replacement might be an actually competent hardline Home Secretary.

Though, of course, it must also be said there are not that many potentially competent hardline ministers left for any department.

Cabinet ministers come and go, but the lack of any substantial policy and reform looks likely as if it will stay a while longer.

***

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Hurrah for this latest move towards transparency of the UK Supreme Court

27th April 2023

The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.

This means that, by defintion, the appeals are of wider interest than to the parties themselves.

It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.

As such, all cases before the Supreme Court should be as transparent as possible.

But.

There is nominal transparency, and there is real transparency.

Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.

You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.

Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.

Only then do you have real transparency.

And so the latest news, as reported by Legal Futures, is welcome.

The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.

This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.

A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.

There are few better ways than to grasp the nature of practical law and to understand how cases work.

There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.

There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.

But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.

And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.

Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.

Of course: pretty soon many people would get bored by the novelty of such access.

But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.

And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.

***

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

*

Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

*

The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

*

Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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