Category: Coronavirus – COVID-19

“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.”

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“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.

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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.”

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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.

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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.

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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.

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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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A stitch in time saves…

24th March 2023

Yesterday’s post on the appearance of Boris Johnson before the committee of privileges was supposed to the last on that topic…

…but.

It is really such a delicious constitutional moment – the legislature holding the former head of the executive to account with contested views of whether there should be a judicial process is a heady concoction of the supposed separation of powers.

And so here is a further thought, brought about by the lethal questioning of Johnson by the Conservative backbencher Alberto Costa on exactly what advice Johnson had taken, and from whom.

Johnson admitted that he did not taken legal or any other official advice before telling the House of Commons that he had been advised that the applicable rules and guidance had been followed.

It seems the advice was merely from a political adviser.

Well.

Johnson has certainly taken a lot of legal advice since.

If only he had taken legal advice at the right time, then he would have been saved having to take all this legal advice afterwards.

A stitch in time saves the need for any stitch-up later.

Have a good weekend.

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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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The Committee of Privileges and the Equality of Arms

23rd March 2023

Here are some further – and perhaps final – thoughts about the appearance of the former prime minister before the committee of privileges of the House of Commons this week.

Boris Johnson not only “lawyered-up” – he was as lawyered-up as it is humanly possible to be.

At his side as he gave his evidence he had a senior partner of the leading white-collar criminal law firm, and just behind him he had one of the leading barristers on due process and fundamental rights of his generation.

Before Johnson’s appearance there had been submission after submission – all at the taxpayers’ expense.

For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.

And the strange thing is that this was not even a legal proceeding: this was entirely a matter for parliament and not for any court.

But Johnson was not taking any chances: he was lawyered-up to the hilts when no lawyers were needed at all.

However, because he had lawyered-up, and his lawyers had come up with elaborate and technical arguments about fairness and evidence, then the committee responded in kind.

And the the committee had access to its own legal advice, not least that of Sir Ernest Ryder – the former lord justice of appeal and senior president of tribunals.

There are few, if any, lawyers with a better understanding of the rules of evidence and fairness.

And so yesterday saw that the heavily prepped Johnson met and confounded by an even better prepped committee.

The questioning was short and relevant, and rarely outpaced the disclosed evidence, and Johnson was often left at a disadvantage.

For example, Johnson was forced to concede that the “advice” on which he supposedly advised was not from any official or lawyer – but from a political appointed adviser.

Like a tag team, each member of the committee had prepared the ground they had to cover so that as much ground as possible was covered.

From a lawyer’s perspective, the committee hearing was a forensic treat.

But.

A parliamentary committee hearing should not be such a legalistic exercise.

How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.

As it was, the committee was more than a match to Johnson’s legalistic approach.

And, of course, Johnson is (as this blog has previously averred) playing the long game of trying to influence what sanction follows, if any.

Yet in the shorter-term, the only thing Johnson has gained by lawyering-up will be a more tightly robust and comprehensive committee report than otherwise would have been produced.

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If only others in our society had access to such an equality of legal arms.

Even those who are facing an actual legal or judicial process.

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Johnson at the Privileges Committee – a post-hearing analysis

22 March 2023

The first thing to note about the appearance of Boris Johnson at the hearing today of the committee of privileges is that how little difference it will probably make to the committee’s report.

This is because the bulk of the report will be based on documentary evidence and the written evidence of other witnesses.

On certain points there is the possibility that the oral evidence of Johnson may make a difference – where it will rebut or even refute what the evidence would otherwise point to.

This is to be expected – and it can be compared with civil litigation where the respective merits of the parties’ cases can often become plain on disclosure of documentary evidence and the exchange of witness statements, long before any actual trial and cross-examination.

As such, today’s hearing was not an all-or-nothing gladiatorial bout.

For, as far as the committee’s report is concerned, what Johnson had to say may only have marginal importance, and on some points his evidence may make no difference at all.

Instead, and as this blog averred would be the case yesterday, Johnson gave the impression that he was playing to other audiences – that of his fellow parliamentarians (who would have to decide on any sanction) and to the media and the public (who would aid him in placing pressure on parliamentarians).

His combative and sometimes even confrontational performance makes no sense if you see it as an attempt to shape the committee’s report – but it made a lot of sense in his objectives to discredit the committee and any adverse report, and to frame himself as a victim.

Unfortunately for his strategy and tactics, he fell flat on at least a couple of occasions, including when he indicated that he would only accept the committee’s findings as fair if he was cleared.

No doubt if he is “cleared” he will hold the committee up as an exemplar of fairness and thoroughness.

And this will not be the first time he has wanted his cake and to eat it.

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Long term followers of this blog and this story may recall that it was observed last year that the “showing leadership” formulation was highly successful in heading off fixed penalty notices from the police.

At a stroke Johnson had a plausible explanation for being at almost all the gatherings – even thought those also attending got the penalties.

The only gathering for which that explanation could not work was for his own birthday, and so that is why he perhaps got a penalty for that and not any other gatherings.

I do not know if that theory is true, but it so far matches the facts better than any other explanation.

Today showed that Johnson is fully into his stride with the “showing leadership” explanation for his attendance at the gatherings.

The problem, however, is that a defence for his attendance which works with the police for breaking the criminal law does not necessarily work as an excuse for whether he knew the gatherings generally would be against the non-legal guidance.

It may well be that the price of heading off more than one fixed penalty notice is that Johnson now has no real answer to the hard questions of this committee about what he would have known at the time.

Johnson also had no real answer today to where some commentators think he is most exposed – his failure to correct the record as soon as he realised what he said was not correct.

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Nobody knows what the committee will decide – and, if they say Johnson is in contempt, what the House of Commons will determine as any sanction.

The committee may still find that Johnson made those statements in good faith and that he corrected the record in a timely manner – even though the other evidence points to a breach of privilege.

Perhaps.

But whether the “greased piglet” gets away (again) without serious sanction may be determined by the audiences to whom Johnson was playing today.

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NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

2nd March 2023

The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.

It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.

And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.

On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.

The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.

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This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.

In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.

For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.

NDA is not, in and of itself, a legal term of art, but instead a label of convenience.

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To understand NDAs you must first understand what it means not to have a NDA.

If there is not a NDA between two parties there will still be the law of confidentiality.

(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)

Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.

If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.

This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).

(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.

Generally, the law of confidentiality is about the remedy of injunctions.

This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.

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So given there is already a general law of confidentiality, why do parties have NDAs?

There are many reasons.

First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.

Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.

These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.

But there are other reasons why parties may want a NDA.

NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.

A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.

A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.

But.

Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.

Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.

NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.

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NDAs, however, are not magical devices.

They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.

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If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.

This is especially the case if (A) is not given notice of the breach.

For, as set out above, the law of confidentiality is generally about the remedy of an injunction.

And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.

It would be too late to put the cork back in the bottle.

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So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?

Well.

This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.

Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.

For example, there could be structured payments that would not be payable in the event of any breach.

Or there can be an indemnity against the costs of dealing with the consequences of a breach.

But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.

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And now we come to the public interest.

Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.

All (A) would then have, if they have been careful, would be other terms of the NDA.

The legal position was recently summarised by a judge:

“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].

“The four main tenets can be summarised as follows:

“(1)  There is an important public interest in the observance of duties of confidence since those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential (ibid at [67]).

“(2)  The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”.  The test is one of proportionality: the court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public (ibid at [67]).

“(3)  It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).

“(4)  Thus, in essence, the Court must consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.”

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Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.

Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential”.

But.

The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.

Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.

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The Daily Telegraph did not sign the NDA and so would not be bound by its terms.

Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.

But whichever way he framed the claim, he would face (in some form) a public interest defence.

The position of third parties with whom Hancock messaged, however, may be stronger.

And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.

The Daily Telegraph must have had very bullish and robust legal advice on the public interest.

They also felt confident enough in their public interest defence not to give Hancock notice of publication.

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Hancock is today quoted as saying:

“There is absolutely no public interest case for this huge breach.  All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned.  As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”

If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.

He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.

So far it appears that he may not take legal action, he also has said today (emphasis added):

“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”

If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.

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NDAs are usually ornaments or shields.

Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.

As such NDAs are often articles of trust.

And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.

On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.

And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.

As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.

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We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.

But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.

It was a daft thing for him to do.

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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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Guest Post: Adam Wagner’s Emergency State reviewed by the legendary police blogger Nightjack

18th October 2022

The legal blogger Adam Wagner has written a book about the coronavirus regulations.

But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.

Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.

Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.

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Emergency State by Adam Wagner

Review by Richard Horton

 

A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.

Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”

I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.

I was being offered one of those fabled “glide path to retirement” jobs.  This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.

Of course I snatched his arm off.

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I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.

I had my feet underneath me, everything was going well and then March 2020 happened.

From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.

The world had caught a virus and here in England, the Government tried to take control.

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Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.

On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.

My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.

The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk  for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.

Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.

I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.

Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.

*

Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.

As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”

What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance?  How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?

*

As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.

Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.

He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.

This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.

*

From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.

He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.

*

The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.

Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.

*

If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.

We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.

I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?

This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation  were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.

*

As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.

If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.

There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.

We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing.  Will those lessons be remembered when we pass this way again?

Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.

Richard Horton

TAFKA NightJack

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The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

*

This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

*

Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

*

We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

*

As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

*

Caption: legal commentators reading the committee report

*

The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

*

This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

*

Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.

The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.

The thing is that I do not know – could not know – if that explanation were true.

The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.

(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)

The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.

In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

The decision to issue a notice is not a judicial decision – no judge or court is involved.

The decision is made by a police officer, who must reasonably believe that an offence was committed.

The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.

Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.

If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.

The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.

The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.

And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?

It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.

*

But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.

Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).

As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.

And so – as techies would say – Garbage In, Garbage Out (or GIGO).

The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.

From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.

One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.

If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.

And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.

*

Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:

“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”

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The lawyering-up of Boris Johnson – how the Prime Minister’s statement on the Sue Gray report may give clues to how he escaped more penalties

26th May 2022

Let us start with one stark fact that demands explanation.

That fact is that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present received many more.

One response to this striking fact is to posit that there must have been a stitch-up or some other conspiracy – and nothing in what follows in this post denies that possibility.

This blog, however, is not a conspiracy blog, but a place for law and policy analysis and commentary.

And on that basis, let us look to see if there can be another explanation.

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Let us now go to what the current Prime Minister said in the House of Commons yesterday, in his pre-prepared statement.

One passage was especially interesting:

“The exemption under which those staff were present in Downing Street includes circumstances where officials and advisers were leaving the Government, and it was appropriate to recognise them and to thank them for the work that they have done. [Interruption.] 

“Let me come to that, Mr Speaker. I briefly attended such gatherings to thank them for their service—which I believe is one of the essential duties of leadership, and is particularly important when people need to feel that their contributions have been appreciated—and to keep morale as high as possible. [Interruption.] 

“I am trying to explain the reasons why I was there, Mr Speaker.”

*

This passage seemed to be very carefully put together – and (as a former government lawyer) I gained the impression that it owed far more to legal advice than to any genuine articulation of Boris Johnson’s state(s)-of-mind.

Johnson was present, he claims, because he was fulfilling a management function – an ‘essential dut[y] of leadership’.

He was, he says, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible.

*

If you read the last sentence again, you will see it says much the same thing in three different ways.

This is a trick many lawyers know and use to make it look like an obligation has been fulfilled.

It takes the form of [duty A] was fulfilled because of [x, y and z], where [x, y and z] are synonyms or near-synonyms.

*

The impression I had on listening to this passage of Johnson’s statement was that some lawyers had been presented with the unhappy facts of the Prime Minister attending leaving parties and giving toasts, with glass in hand.

How does one possibly convert that situation into something that brings it within the legal exemption of being part of a gathering that was reasonably necessary for work?

After all, a leaving party is not reasonably necessary for work, and toasts are not reasonably necessary for work.

But if you flip the description of what happened from parties and toasts to performing an ‘essential dut[y] of leadership’ by synonym, near-synonym, and near-synonym – ahem, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – then, there you have it, a reasonable excuse.

That excuse may not cover others present at the same gathering – but it would cover the one providing ‘essential leadership’.

And it would not cover the one gathering where that excuse – I mean, explanation  – would and could not apply – the birthday gathering.

That is why, I aver, he got a penalty for that indoor gathering but not the other parties.

My suspicion – which may or may not be well-founded – is that this is the very reason why someone is quoted as saying that the Prime Minister was assured that he would only get one penalty.

(Of course, this may be wrong and it may be that there were Metropolitan Police leaks or undue contacts between the Prime Minister’s office and Scotland Yard – but my theory has the merit of not needing any such conspiracy.)

*

Yesterday I set out this theory in a brief Twitter reply – which was not sufficiently clear – and I was told that I was wrong – that leaving parties and toasts were not and should not be reasonably necessary for work.

But I agree with those points.

My suggestion is not that leaving parties and toasts were, by themselves, reasonably necessary.

It is instead that providing ‘essential leadership’ is reasonably necessary – and this can be distinct from how that leadership manifested itself in particular circumstances.

And synonym, near-synonym, and near-synonym – thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – may all be supposed examples of such ‘essential leadership’.

Of course, there were many other ways a senior manager could have performed these ‘essential’ tasks – by Zoom calls, or thank-you notes, and so on.

And indeed, during the lockdown, this is what other senior managers did so as to provide their (genuinely) essential leadership.

If your view is that the current Prime Minister could have performed his role without giving toasts at leaving parties, no sensible person will disagree.

But from a legal perspective, if that was his reason for being at a gathering – and if it is accepted that thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible can all be elements of a leadership function – then you can now see how the Prime Minister has managed to take the benefit of the exemption.

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The theory set out above has the merit of explaining the striking fact stated at the head of this post: that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present at those gatherings received many more.

And if this theory is sound then it shows the irony – hypocrisy – of Johnson’s many attacks on ‘activist’ lawyers for others while taking the benefit of legal advice for himself.

It is also shows the unfairness of the more senior people in ‘Partygate’ getting lawyered-up when more junior figures were not able to do so, and so were penalised instead.

If Johnson should be toasting anyone, then it should be the lawyers that gave him a way of avoiding legal liability in this awkward situation.

But, no doubt, he will ‘move on’ – and start attacking lawyers again.

**

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

**

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