Category: Covid Inquiry

“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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How to approach the oral evidence at the Covid Inquiry

Midsummer Day, 2023

There are now big political names giving oral evidence at the Covid Inquiry for the first “module” covering the preparedness of the government for a pandemic.

This is just a brief post to point out that you should not over-emphasise the theatrics of certain exchanges between the witnesses and counsel, however dramatic or even gladiatorial those exchanges seem to be.

This is not a film or a play; it is not even a trial.

The best way to understand what each witness has to say, once the evidence has been given, is to click onto the “documents” part of the Covid Inquiry site.

And then you should find at least two documents.  The first is the witness statement of the relevant witness provided before the questioning, and the second is the transcript of the questioning.

For example, this is David Cameron’s witness statement – and this is the transcript of his session.

Sometimes the Inquiry will also publish other documentary evidence that has come up in the oral evidence sessions, for example this.

By comparing the witness statement with the oral evidence (and any additional documentary evidence) you will see exactly where the Inquiry is probing – and also where the Inquiry may not be satisfied by the content of a witness statement.

The nature of any inquiry does not lend itself to sudden courtroom fireworks; indeed, a line of questioning may seem very dull to onlookers until you realise what is said in the statement.

Remember, inquiries are often reliant on the evidence provided – a sort of GIGO principle.

And these oral sessions are intended to complement the written witness statements, and so the transcript should be read with the statement.

Those who only read media summaries, or catch snippets of the more notable exchanges, often end up surprised with what any inquiry produces.

Before you form Very Strong Opinions on what witnesses to the inquiry are supposed to have said, take a few moments to read the witness statement and then the transcript for yourself.

And you are lucky: because of the internet and an impressive Covid Inquiry website this – actually intellectually satisfying – exercise can be done with ease.

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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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Why the Covid Inquiry publishing reports as it goes along is brilliant news – and a welcome change

13th June 2023

The Covid Inquiry started taking oral evidence from witnesses today, and there is one snippet of news which you may have missed – and that may make all the difference.

Here it is on the Guardian live blog:

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Of the recent(ish) inquiries with which I am most familiar – the Hutton Inquiry, the Chilcot Inquiry, the Leveson Inquiry, and the Daniel Morgan Inquiry – there has been (if I recall correctly) a common problem.

Yes, there was great apprehension and even excitement on the eve of publication – often after years of suspense.

And then: the report drops.

Volumes and volumes of text, often with schedules of evidence, are all plonked into the public domain.

Time-poor reporters (and their attention-poor readers) scramble to get a sense of the report – often relying on executive summaries.

There are word-searches and there is scan-reading, and there is a hurried hunt for juicy quotes and any smoky gun.

If we are lucky, we may also get a meaningful ministerial statement.

And then: it is all over in a day, leaving the report to specialists and eccentrics.

In a few days, the report will pass into history, and it can be quickly forgotten.

The report may have taken considerable time and resources to put together, but the all-or-nothing manner of its publication can in turn mean that there will not be any similar effort into the media and the public engaging with the report when it is published.

This is why it is sensible – and welcome and refreshing – that the Covid inquiry are not saving everything to one big report at the end of the process.

As well as public, streamed sessions, and an admirable website hosting useful documents, the Inquiry can encourage ongoing engagement by issuing these interim reports.

And, if this is done well, then we may end up up with that rare thing: an Inquiry where the findings and recommendations last longer than a news cycle.

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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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A detailed explanation of the government’s judicial review of the Covid Inquiry – and why this judicial review is so significant

7th June 2023

This is a detailed post on the judicial review brought by the government of the United Kingdom against the Covid Inquiry.

This post has taken a few days to put together – and I apologise to those who were expecting daily posts over the last few days, but I hope this post was worth the wait.

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First, a point about civil – as opposed to criminal – litigation.

For a civil case to end up in court requires there to be many decisions (and indecisions) by various parties, and some of those decisions could have been made differently.

Some people – including even law students – assume that cases ending up with a final judgment is a natural, almost leisurely process, and the fact that a case has ended up in court requires no special explanation.

My commentary on civil cases comes from a different, more practical perspective, and it can be summed up in a simple phrase: how the Hell has this case ended up in court?

In other words: why was the dispute not settled, either by compromise or by one side not backing down, and why did at least one party think that the benefits of taking a claim to a full hearing outweigh the risks.

For there are risks in taking any civil case to a full hearing: you hand control of the case to an independent third party.

And so you can lose.

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The judicial review brought by the government against the Covid Inquiry is unusual and significant.

This post now sets out why the legal case is unusual, and then the post details what the judicial review is about and how we have got to this point: how the Hell is this case ending up in court?

The post concludes by setting out the significance of the judicial review.

This is, I am afraid a long post.

But at least most of the paragraphs are short.

And I have provided headings in bold underline and put the dates in bold to make the story easier to follow.

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Why is this judicial review unusual?  (But why is it also not unusual?)

This judicial review is unusual in a couple of ways, though not unusual in one other way.

First, it is more usual for judicial reviews to be brought against the government rather then by the government.

This is because a judicial review claim is the means by which the High Court is invited to rule on the legality of things done (or not done) by public authorities and some other entities that perform public functions.

Here, the public body which is to be reviewed is itself a public body: a public inquiry established under the Inquiries Act 2005.  That is is also another public body bringing the judicial review is incidental.

This is unusual – but it is not unknown.  From time to time public bodies do bring judicial reviews against other public bodies.

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Second, it is rare for a government to bring a judicial review against an inquiry which it has itself set up.

This is not absolutely unknown, as the Saville Inquiry into Bloody Sunday was successfully judicial reviewed by the then government.

In that case, which was before the 2005 Act existed, an appeal judge said (and I have broken this passage into sentences for flow):

“It is accepted on all sides that the Tribunal is subject to the supervisory role of the courts.

“The courts have to perform that role even though they are naturally loath to do anything which could in any way interfere with or complicate the extraordinarily difficult task of the Tribunal.

“In exercising their role the courts have to bear in mind at all times that the members of the Tribunal have a much greater understanding of their task than the courts.

“However subject to the courts confining themselves to their well-recognised role on applications for judicial review, it is essential that they should be prepared to exercise that role regardless of the distinction of the body concerned and the sensitivity of the issues involved.

“The court must also bear in mind that it exercises a discretionary jurisdiction and where this is consistent with the performance of its duty it should avoid interfering with the activities of a tribunal of this nature to any greater extent than upholding the rule of law requires.”

(Hat-tip – Dinah Rose KC)

So there is nothing inherently wrong about a government seeking a court to rule on the legality of an inquiry.

But it is rare, and this may be the first time it has happened for over twenty years.

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But.

In one other way, however, this judicial review is not odd – and, indeed, is fairly conventional.

That is because the judicial review is for the High Court to rule on what a statutory provision means.

This is pretty standard work for the Administrative Court – that is, the specialist part of the High Court that hears judicial reviews at first instance.

In this case, the question before the court comes down to whether a provision in the Inquiries Act allows the Inquiry to do a certain thing.

The government says the legislation does not permit what the Inquiry wants to do; the Inquiry says that the legislation does permit it; and the High Court will decide the point.

In more legalistic terms, the High Court is being asked to “construct” the statutory provision and to “interpret” what the law means in this particular case.

If the government wins outright, the High Court may “quash” what the Inquiry has done – making both a formal notice and a formal ruling upholding the notice disappear in a puff of legal logic.

But if the Inquiry wins, then what the Inquiry did still stands, and the government has to comply with what the Inquiry wants.

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What is in dispute?

Now we come to what is in dispute, and this goes to the heart of the Covid Inquiry and what the Inquiry wants to do.

The dispute is ultimately about power – and, in particular, it is about who exercises ultimate power.

In essence: who gets to decide whether a document (or other evidence) is relevant to the Inquiry?

Is is the Inquiry itself?

Or is it the person – here, the government – being asked for the document (or other evidence)?

And can that person simply assert that the requested document is not relevant and so not have to disclose it?

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In more technical terms this contest of power is about what lawyers call “jurisdiction”.

The Inquiry asserts that it has the jurisdiction to formally request specified documents (and other evidence) under the Inquiries Act that relate to – or potentially related to – the Inquiry.

And, crucially, if the Inquiry’s request is not complied with, the Inquiry has certain powerful methods of enforcement, including applying for criminal sanctions.

For, as so often in the law, real power comes not just with a right to request a thing, but with the power to enforce that request in the face of resistance or reluctance.

But the government says No.

The government says the Inquiry does not have the jurisdiction to request documents when those documents are not relevant to the Inquiry, even if the Inquiry considers them potentially relevant, and that the Inquiry has to accept the government has the last word on whether this is the case.

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The law – the soft Rule 9 Requests and the hard Section 21 Notices

Now we turn to the detail of the dispute, and we need to look at a couple of legal texts: the relevant provisions of Inquiries Act and the Inquiry Rules made under that Act.

Under Rule 9 of the Inquiry Rules, an inquiry has a general power to request evidence and documents from a person:

This can be said to be the weaker request power.

There is then what can be said to be a stronger power in section 21 of the Inquiries Act:

It is a criminal offence for a person not to comply with a section 21 request without a reasonable excuse, and the Inquiry also can apply to the High Court for enforcement action.

Now let us focus on one part of section 21 in particular (emphasis added):

“The chairman may by notice require a person […] to provide any documents in his custody or under his control that relate to a matter in question at the inquiry“.

The words in bold are the most important words in this legal case.

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The usual approach for an inquiry is to send a Rule 9 request first, and then only if there seems to be some difficulty to proceed to a section 21 Notice.

Soft, then hard.

You will see that Rule 9 is not qualified in what documents the Inquiry can ask for: “The inquiry panel must send a written request to any person that it wishes to produce any document or any other thing.”

But if an inquiry wants to take a tougher line, and to back the request with the pain of sanctions or enforcement action, then the request can only be for documents in a person’s custody or under his control “that relate to a matter in question at the inquiry”.

But if an inquiry issues a section 21 Notice that requests a document that does not “relate to a matter in question at the inquiry” then that inquiry is acting outside of its legal powers.

The inquiry would be acting, as a lawyer would say, “ultra vires”.

And this, in legal terms, is what the current dispute is about.

It is about the correct construction of section 21 and the true interpretation of that phrase.

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The Inquiry Terms of Reference

So what would “relate to a matter in question at the inquiry” in the context of the Covid Inquiry?

Here we now need to look at the Terms of Reference for the Covid Inquiry, as it is the combination of section 21 and the Terms of Reference which provides the parameters of what the Inquiry can and cannot request backed by sanctions and enforcement.

The Terms of Reference are set out here – and they should be read in full by anyone following this inquiry.

The particular term of reference for this dispute is about “how decisions were made, communicated, recorded, and implemented”.

(Interestingly, the draft terms of reference which were subjected for consultation included the text “how decisions were made, communicated and implemented”.  The “recorded” was added following the consultation exercise.)

The government agreed these Terms of Reference – and so the Terms of Reference took effect under the Act.

This means that section 21 has to be read in tandem with the Terms of Reference.

This also means that the government really only has itself to blame if it now considers the Terms of References as being too wide.

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Combining the law and the Terms of Reference

Now, if we combine section 21 and the adopted Terms of Reference, we can arrive at the following proposition:

The Covid Inquiry chair may by a section 21 notice require a person to provide any documents in their custody or under their control that relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented.

This proposition sets out, I think, the correct jurisdiction of the Inquiry chair for issuing the Section 21 Notice which is in dispute in this case.

The issue is whether this jurisdiction covers documents requested by the inquiry which the government insists are “unambiguously irrelevant”.

You will see that section 21 does not use the phrase “unambiguously irrelevant” – or even “irrelevant” or “relevant”.

Section 21 instead says “that relate to”.

(Isn’t law fun.)

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The importance of the redaction protocol and the scope of the second module

We can now turn to the detail of the dispute, with the help of various documents which are either publicly available or have been provided to journalists.

Once the Inquiry started work it published a Protocol on the Redaction of Documents.

One paragraph of this protocol is significant (emphasis added):

The Inquiry also separated its work out into “modules”.

The first module is on the preparedness of the United Kingdom to the pandemic – and it is under that module the public hearings have just started.

The second module is on “how decisions were made, communicated, recorded, and implemented”.

The Inquiry articulated what it understood this general (and wide) term of reference to mean:

By February 2023 the Inquiry had further articulated its understanding and wrote to former Prime Minister  Boris Johnson, care of the Cabinet Office, as follows:

“Module 2 will consider and make recommendations about the UK’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 until Covid-19 restrictions were lifted in February 2022 (“the specified period”). It will pay particular scrutiny to the decisions taken by you and the Cabinet, as advised by the Civil Service, senior political, scientific and medical advisers, and relevant Cabinet sub-committees, between early January and late March 2020, when the first national lockdown was imposed.”

Adding:

“We have defined “core political and administrative decision-making” as those decisions that were taken by the you/No. 10, the Cabinet and Cabinet Committees (including Ministerial Implementation Groups ‘MIGs’) and the Lead Government Department (“LGD”), supported by senior officials and advisers, to manage the emergency response to the Covid-19 virus. We wish to understand the role that you played within that decision-making process between the beginning of January 2020 and 24 February 2022, with a particular focus on the period 1 January 2020 to 26 March 2020.”

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The origin of the dispute: the February letter to Boris Johnson

The 3 February 2023 letter quoted above was a Rule 9 Request (and not a Section 21 Notice) and its main purpose was to request a witness statement from Johnson covering some 149 questions.

But at the end, the letter also requested:

“[…] details and copies of:

a. Key emails and other correspondence in relation to the issues you have
discussed in your witness statement;

b. Any informal or private communications about the UK Government’s
response to Covid-19 of which you were part including but not limited to
informal groups (such as text messages and WhatsApp groups) or
private messages or email communications with Ministers, senior civil
servants or advisors;

c. Please provide a list of any such groups of which you were part of; and

d. Any contemporaneous diary or notes which you made during the
specified period relating to your involvement in the UK Government’s
response to Covid-19 and provide copies of any such information.”

Similar requests under Rule 9 for witness statements and documents were sent to other current and former ministers, officials and advisers.

The Cabinet Office is the department responsible for dealing with these requests.

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The Cabinet Office delays

Time passed.

Work was slow at the Cabinet Office on meeting the Rule 9 requests, in respect of both Johnson and other figures.

Part of the reason for the delay seemed to be the desire of the government to redact materials prior to disclosure to the Inquiry.

Looking at the correspondence, it seems that the issue of delay (rather than who redacted what) was the biggest concern to the Inquiry.

What was causing the delay?

Well, lawyers of course.

Part of the delay was an elaborate, multi-stage lawyer review.

A government email to the Inquiry on 20 March 2023 described to the Inquiry that the redactions were being considered by “B level Panel Counsel”, and then “A level Counsel”, and then – finally – a KC.

It appeared that the government was using (and paying for) three – three! – external barristers of increasing seniority to review each redaction.

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The Inquiry gets formal

After a great deal of informal discussion between the Inquiry and the Cabinet Office, and after various missed deadlines, the Inquiry sent a formal letter on 24 March 2023.

At this stage,  the term “unambiguously irrelevant” had not been used in correspondence, and perhaps it had not even yet been coined.

Instead, the discussion was about “irrelevant and sensitive” (ie national security or legally privileged) material.

The Inquiry wrote to the Cabinet Office and reminded the Cabinet office of the Inquiry’s redaction protocol:

“It is important that the Inquiry receives documents from Material Providers in clean, unredacted form. Any departure from this approach must be discussed with the Inquiry’s legal team before materials are provided. The provision of documents must not be delayed on grounds that the Material Provider seeks redactions to the material.”

The Inquiry then added:

“It is understood that notwithstanding the above, which has been the Inquiry’s consistent position on this issue, the Cabinet Office is in the process of redacting ‘irrelevant and sensitive’ (“I&S”) content from otherwise relevant communications. Furthermore, it is clear that this process is delaying the provision of relevant materials to the Inquiry.”

The final part of the Inquiry’s letter was firm and stark (emphasis added):

“…we require confirmation from the Cabinet Office by 4pm on Thursday 30 March that clean, unredacted copies of exports from all potentially relevant WhatsApp communications will be provided for the Inquiry’s consideration. In the absence of confirmation by this date, I am instructed that the Chair will issue a s.21 Notice to compel disclosure from all individuals who have confirmed they hold relevant materials.”

The Inquiry was now threatening to invoke section 21.

Soft, then hard.

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The Cabinet Office lawyers-up even more

Even before the above letter was sent by the Inquiry, officials at the Cabinet Office had told the Inquiry that legal advice was being sought.

The explicit threat of a Section 21 Notice would have made legal advice more urgent.

In my opinion, this seems to be when the Cabinet Office decides to instruct First Treasury Counsel – the most senior external government lawyer, known as “the Treasury Devil“ – as it seemed the Cabinet Office knew they had a potential and rather serious legal problem.

The next letter of the Cabinet Office to the Inquiry on 30 March 2023 is markedly different in tone and content to the previous government letter.

The letter also switches to “unambiguous irrelevance” as the (supposed) test, instead of “irrelevant and sensitive”.

It would seem that the government lawyers adopted this phrase – which, again, does not actually appear in the legislation – as its gloss on what “relate to a matter in question at the inquiry” means.

If this is correct, then this means that the government’s litigation tactics, and even strategy, was adopted around this point.

The legal(istic) points contained in this letter are pretty much the same in both substance and form as those the Cabinet Office relies on when challenging the Inquiry and in applying to the High Court.

Indeed, the key legal points are now copied (and, ahem, pasted) from document to document.

These points are, in summary (1) a full challenge to the jurisdiction of the Inquiry to issue a Section 21 Notice and (2) a further argument about the privacy rights of the individuals involved, including under the Human Rights Act and Article 8 of the European Convention of Human Rights.

(That second argument is weak, and it is also somewhat grimly ironic, given the government wants to repeal the Human Rights Act and weaken Article 8 protections generally.)

If the above assessment is correct, the Cabinet Office was preparing for this judicial review three months ago.  If so, somebody senior at the Cabinet Office had decided as far back as March that the Inquiry may need to be (in effect) put back in its box on section 21.

Why?

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Why is the Cabinet Office fighting this case?

What explains the Cabinet Office starting to prepare in March 2023 for a judicial review against the Inquiry which it finally makes in June 2023?

There are two plausible answers to this – one which accords (broadly) with what the government has expressly said, and one which is an alternative and cynical explanation.

The less (or not) cynical explanation is that the government does not want this Inquiry or other inquiries under the Inquiries Act to overstep their legal mark.

Inquiries under the Inquiries Act are what lawyers (delightfully) call “statutory creatures” or “creatures of statute”.

This means no inquiry – not even one into how the government dealt with the biggest public health emergency of recent times – has absolute or inherent power.

No inquiry can simply do what it wants and request what it wants, threatening to use its formidable legal powers under the Act so as to get its way.

Taking this explanation at face value, the government’s concern is not directly about this inquiry, but about all inquiries yet to come under the Act.

The Covid Inquiry thereby needs to be tamed on this view, not because it is an inquiry about Covid – but because of the practical (if not legalistic) precedent that would be set if the Cabinet Office complies with the current requests.

And notwithstanding the cynicism of you and others, there will be government lawyers and officials who will hold this view sincerely, that is in good faith.

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But.

There is an alternative cynical view.

This view is that those connected with the government – especially current (and former) ministers and senior officials – are reluctant for the Inquiry to see all the communications that were passing between them, especially in the early days of the pandemic.

The Inquiry wants to see the communications in context.  For example, what were the other matters which were being prioritised over dealing with Covid?

To take one striking instance: of course, the minutes of what happened at COBR meetings about Covid will be disclosed, but what were ministers doing instead of attending COBR? And so on.

The Inquiry’s view is that this contextual information will enable it to provide a fuller account of “how decisions were made, communicated, recorded, and implemented” – the relevant, and explicit, term of reference of the Inquiry.

And if we return to the proposition set out above: the Inquiry chair may by a section 21 notice require a person to provide any documents in their custody or under their control that relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented.

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Context is everything, but not anything – the importance of the words “relate to”

One wise law lord once said that context is everything.

But this, of course, does not mean context is anything.

Context requires there to be some connection to the, well, text.

To seek contextual information is thereby not an exercise in anything goes.

But.

In the current case, the Inquiry is not actually asking for random information.

The Section 21 Notice which it eventually served on the Cabinet Office details in an annex the individuals, and their positions, whose WhatsApp messages are being requested.

Take a moment to look at this list.  None of those mentioned are private individuals:

And so, applying the combination of the wording of section 21 and the terms of reference, the Inquiry’s position is that the WhatsApp messages between these figures and Johnson “relate to how, in response to COVID-19, decisions were made, communicated, recorded, and implemented” in that the messages provided context for the decisions made (and not made).

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From the formal 30 March 2023 letter to the judicial review

Once the Cabinet Office has invoked (summoned?) the Treasury Devil and sent the 30 March 2023 letter, the lines of the dispute were set.

It was only a matter a time before the Inquiry issued the five-page Section 21 Notice.

(Though the Inquiry plainly wrong-footed the Cabinet Office by also including in the Notice a request for Johnson’s notebooks and diaries – which it had also asked for in the February letter.  It would seem the Cabinet Office had focused on getting legal advice on the WhatsApp messages.)

For some reason, the government chose not to immediately judicially review the Section 21 Notice when it was issued on 28th April 2023.

Instead the government made an application on 15th May 2023 under the Inquiries Act for the Inquiry to revoke the Notice.

This made little or no legal sense, as such an application presupposed the Notice to be legally valid.

This is because one cannot revoke (or vary) something which is ultra vires to begin with.

The application was therefore a form of phoney war, and the application was deftly batted back by the Inquiry chair in a succinct ruling on 22nd May 2023.

And so the Cabinet Office launched its judicial review on 1 June 2023.

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Shadow-boxing and actual boxing

Perhaps the shadow-boxing of the application was an exercise in getting the Inquiry to set out its legal position in advance of a formal judicial review.

Or perhaps it was hoped that a compromise could be reached between the Inquiry and the Cabinet Office so that there would be no need for formal litigation.

Who knows.

But now the judicial review has been issued there will be (unless something now unexpectedly happens) a judicial determination.

This will end up in court.

But there is a risk for the government.

The decision of the High Court (which, of course, may be appealed – perhaps ultimately even to the Supreme Court) may not be the determination the Cabinet Office will want.

A court may decide against the government and give an expansive judgment, affecting not only this inquiry but also future inquiries.

Sometimes it is better not to litigate than to risk an adverse legal precedent.

But somebody senior at the Cabinet Office – or in government generally – thinks that this legal case is worth the risk of an adverse decision.

And, similarly, the Inquiry chair believes this is not a matter on which the Inquiry can back down.

How the Hell has this case ended up in court?

This case has ended up in court because both the government and the Covid Inquiry see the risks of an adverse final judgment as being outweighed by the benefits of a welcome final judgment.

And neither side sees compromise (or backing down) as a better outcome.

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The significance of the case: what does this judicial review signify?

Again, High Court hearings do not come about by accident: they are the results of decisions by individuals.

And contested legal cases – where both sides have decided it is better to end up in court than to back down – require explanations for both sides.

Here we have a government that has something to lose: either (on a non-cynical view) its ability to tame inquiries overstepping their marks or (on a cynical view) control over unwelcome contextual information.

(Reply guys on Twitter will also say “or a mixture of both”.)

We also have an Inquiry which also has something to lose: ready access to possible contextual information that “relates to” its terms of reference.

And (unless the case suddenly settles or is withdrawn) one side is now going to lose – even if there are appeals.

In my view, the result of this case will go to the very shape of the Inquiry.

Supporters of the government may maintain that a more restricted shape is entirely appropriate, and the Inquiry cannot and should not see “unambiguously irrelevant” material.

Even taking that view at its highest, this is a crucial legal contest – and if the government wins, then the wings of the Inquiry are clipped in what sees as material that “relates to” the Terms of Reference.

But the government may win – it may convince the court, either at first instance or on appeal, that in this instance the correct construction of the Act and the true interpretation of its provisions means that the Inquiry over-reached with the Section 21 Notice.

This is not a case which the government is bound to lose – even if the privacy element of its case is weak (especially given the now expressed view of Johnson that he is waiving his privacy rights), that is not the government’s entire case.

Yet it is also not a case which the government is bound to win.

Senior figures in government know this – and they have known what is really at stake since at least the March 2023 correspondence.

And yet they are willing to litigate anyway.

Whatever the wider significance of this case, there is no doubt that for the government – and for the Inquiry – this legal clash at the start of this Inquiry is very significant indeed.

The scope of the Covid Inquiry is at stake.

***

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**

Disclosure: I am a former central government lawyer.

***

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.

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.”

 

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

**

Disclosure: I am a former central government lawyer.

***

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.

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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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

**

Disclosure: I am a former central government lawyer.

***

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 Covid Inquiry may have set an elegant spring-trap for the Cabinet Office

31st May 2023

The notice issued by the `Covid Inquiry yesterday was a small yet delicious work of procedural art that should be appreciated by connoisseurs of the genre of formal documents.

But to understand why requires some context.

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From the content of documents now published at the Covid Inquiry website we can work out the following:-

On 3 February 2023 the Inquiry sent a Rule 9 request for information to the Cabinet Office.

On 30 March 2023 and 18 April 2023 the Cabinet Office set out in correspondence to the Inquiry that it had “jurisdictional objections” to the request.

On 28 April 2023 the Inquiry issued a Section 21 Notice demanding that certain information be disclosed to the Inquiry.

The Notice contained a demand for four lots of evidence, three of which were in respect of former Prime Minister Boris Johnson.

Those three lots of Johnsonian information were:

The response of the Cabinet Office to this formal notice was to instruct the government’s most senior external lawyer to make a 10-page legal(istic) application to object to the notice, dated 15 May 2023.

The essence of the application is that it was outside the legal powers of the Inquiry to request what the Cabinet Office dubbed “unambiguously irrelevant” material and that it was for the Cabinet Office to determine what was “unambiguously irrelevant”.

*

The Application also contained this interesting passage (emphasis added):

“The inclusion of Mr Johnson’s diaries and notebooks in the Notice is not readily understood by the Cabinet Office, as that particular material had not been the subject of any discussion or purported concern on the part of the Inquiry in correspondence, which was focussed upon WhatsApp messages. No explanation for the specific choice of material in the Notice was set out in either the Notice or the Letter.”

It would thereby appear that the request for the diaries and notebooks was new, and that it was not thereby in the Rule 9 Request of 3 February 2023.

Nonetheless, the Application states firmly (emphasis added):

“It is equally unsurprising that WhatsApp threads may contain personal information of a kind which could have no conceivable bearing on the issues being considered by the Inquiry, including personal information of junior officials. All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”

The indication from the emphasised text is that the Cabinet Office could speak to the content of the notebooks, which in turn would suggest that the Cabinet Office had (or had access to) the notebooks.

Interestingly, that last point only refers to the notebooks, and not to the diaries.

*

The Application is a full-out challenge to the jurisdiction of the Inquiry in issuing the notice, of which only the third part is to do with privacy.

Here the government mentions Article 8 of the ECHR:

This reliance on Article 8 will amuse those who aware of the loud complaints made by ministers about others relying on Article 8 grounds when faced with exercises of state power.

The Application as a whole reads as if it is a prelude to litigation: setting out the public law grounds for a judicial review of the Inquiry.

It is less of an Application, and more of a letter before action.

*

The Application was met with a short ruling by the Inquiry chair on 22 May 2023, which set out that the Inquiry had wide terms of reference and that the question of relevance is the Inquiry to decide, and not the Cabinet Office.

The chair also explained why she asked for the notebooks:

“The documents that are required to be produced are specified in some detail in the Annexes to the Notice […} Mr Johnson’s diaries for the same period, together with notebooks that I have been told contain his contemporaneous notes. […]

“By the date of the Notice, the Inquiry had received  […] exhibited to the draft statements of other Cabinet Office witness statements, redacted extracts from the diary of Mr Johnson. Whilst it is correct that Mr Johnson’s notebooks had not been produced to the Inquiry in redacted form at the date of the Notice, disclosure of these documents was due on the dates provided for in the Notice and the Cabinet Office had already stated that they would be redacted for relevance.”

What it looks like is that the chair used the issuing of a notice that she was going to issue anyway to formally request the notebooks and the diaries, parts of which were arriving in other forms.

The chair is also saying that she knows the Cabinet Office must have access to the Johnson diaries, else parts of those diaries would not be exhibited to witness statements prepared by the Cabinet Office.

She added:

“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.”

*

Now it was back to the Cabinet Office.

What were they to do?

The date now was now Monday 22 May 2023, and the Inquiry had set a deadline of Tuesday 30th May 2023 (a day following a bank holiday weekend).

Would the Cabinet Office comply?

Would they they bring a judicial review?

Would they not comply and wait to see if the Inquiry brought enforcement action?

Tick tock.

And late on Friday – unannounced – the Cabinet Office sent another letter to the Inquiry.

*

In a notice in response the chair noted: “Shortly after close of business on Friday 26 May, the Inquiry received correspondence from the Government Legal Department on behalf of the Cabinet Office, raising two matters for the first time.”

Government lawyers are usually very good with deadlines – and so it would seem to me that for correspondence to be sent so late on a Friday (“after close of business”) then there was a lot of (ahem) internal discussion going on and escalations to senior people to sign things off.

This late-on-Friday letter raised two points.

First, and optimistically, for an extension until a week Monday.

And second, “the Inquiry was informed that the Cabinet Office does not have in its possession either Mr Johnson’s WhatsApp messages or Mr Johnson’s notebooks, as sought in the original section 21 Notice.”

What?

You will recall that these WhatsApp messages and notebooks were the ones that the Cabinet Office had confidently said, only day before, in the Application were covered by its reasoning:

“All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”

*

Oh dear.

It is (ahem) difficult to understand how the Cabinet Office could be so strident in its Application in saying that the WhatsApp messages and notebooks contained “unambiguously irrelevant” material and then to admit that, well, the Cabinet Office did not actually possess those messages and notebooks.

*

Well.

The chair of the Inquiry is no fool, and her notice first thing on Tuesday in response is a fascinating exercise in procedural power.

First, she grants an extension – not the extension which was being sought, but one just long enough to serve what follows.

The extension is of two days, until 1 June 2023.

Second, she says she will accept that the Cabinet Office does not have under its custody or control the requested materials only there is a full detailed explanation for why this is so – and that this explanation will need to be attested to by officials with a signed statement of truth.

That is, under pain of perjury.

This is hardball.

And two days is just long enough for such an explanation to be put together, but not to do much else.

It is worth reading the conditions in full:

*

The impression one gets from this is that there is something which is not quite right with what the Inquiry has been told by the Cabinet Office in correspondence in response to the original Rule 9 Request.

The requirement for a signed statement of truth is significant – and you may recall that the Miller II case on the prorogation of parliament was lost by the government because nobody was willing to provide a statement of truth as to the actual reasons for the prorogation.

The two-day extension, plus the requirement for signed statements of truth, has the elegance of a spring-trap.

*

There are two further pieces of information.

First, the Cabinet Office issued a statement yesterday, which was widely republished:

“A Cabinet Office spokesperson said:

“We are fully committed to our obligations to the Covid-19 Inquiry. As such, the Cabinet Office alone has already provided upwards of 55,000 documents, 24 personal witness statements, eight corporate statements and extensive time and effort has gone into assisting the Inquiry fulsomely over the last 11 months.

“However, we are firmly of the view that the Inquiry does not have the power to request unambiguously irrelevant information that is beyond the scope of this investigation. This includes the WhatsApp messages of Government employees’ which are not about work but instead are entirely personal and relate to their private lives.”

Curiously, there is no mention here of the Johnsonian diaries or notebooks, even though in the Application stated the same arguments “apply with similar force and obviousness”.

It is also understood that the Cabinet office’s position is that the Inquiry does not have the power to compel the Government to disclose unambiguously irrelevant material given the potential adverse impacts on the process around formulation of government policy in future and the privacy of the individuals involved, and that to release this information would set a harmful precedent. 

The Cabinet Office are also said to be concerned that the information the Inquiry is asking for includes purely personal information, as people working for Government have a right to a private life.

Additionally, it is understood that the Cabinet Office maintains that the judgement on what constitutes “relevant material” and what should be redacted is made by legal counsel, overseen by a KC, not the individual witnesses or Government officials.

But.

What is not understood is how any of this deals with the content of the spring-trap: did the Cabinet Office have the documents or not?

*

The second piece of information is in a news report in Bloomberg, which is summarised in the tweets of the reporter:

It is not clear the extent to which this is formal legal advice, as it seems to be more about general (non-legal) constitutional points.

In particular, a “breach of Cabinet collective responsibility” is a comment about a political convention, and not a rule of law.

From what Bloomberg reports, it seems the lawyer is giving sensible practical steers on the constitutional framework for resisting the requests, which is more practical than strictly legal advice.

It is exactly the sort of advice which a government that took confidentiality seriously should be concerned at being disclosed.

*

What will happen next?

Will the Cabinet officials sign the statements of truth, under pain of perjury, detailing exactly what has happened to the requested information?

Is the government seriously going to bring a Human Rights claim on the basis of Article 8?

Will the Cabinet office blink?  Or will the Covid Inquiry blink?

Whatever happens will be significant, for as this blog has averred before, the outcome of this contest will be fundamental to the ability of the Inquiry to properly look at the government’s role in the pandemic.

And, in this particular instance, it should be for the Inquiry to decided what is relevant.

**

Disclosure: I am a former central government lawyer.

***

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.

*

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.

*

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.

*

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.

**

Disclosure: I am a former central government lawyer.

***

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.

Tick tock, tick tock Cabinet Office – the Covid Inquiry stand-off this weekend

26th May 2023

My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.

To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.

This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.

For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.

See my previous post on this here.

The section 21 notice was dated 28 April 2023.

And you will see in the appendices the requests for information in respect of Johnson.

The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday

Remember Monday is a bank holiday.

And today is Friday.

The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.

The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.

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There now seems to be four possible outcomes of what is now a stand-off.

1. The Inquiry may extend the deadline again, but there is no evidence this has happened.

2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.

3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.

4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.

If the choice is (4) then there really is not a lot of time.

I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.

We can bet it is.

But the stakes are now high – and there is not a lot of time to leisurely consider the position.

Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.

Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.

But if the decision is to bring a legal challenge, there is almost no time left.

And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.

If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.

But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.

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Which side will blink?

And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?

The impression given by her ruling this week is that she means business.

But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.

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“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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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.