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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