Category: Transparency

Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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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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Understanding the government’s judicial review of the Covid Inquiry

2nd June 2023

The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.

In the words of the Covid Inquiry spokesperson yesterday:

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

 

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This is an unusual judicial review.

Usually judicial reviews are brought against the government, and not by the government.

This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.

Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.

Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:

 

But that said, this judicial review is still unusual.

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What is this judicial review about?

From a legal perspective, it is about one word: jurisdiction.

To understand this we need to dig into some of the legal background.

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First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.

What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.

An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.

An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.

And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.

Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.

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Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.

This Notice is the main target of this judicial review.

This Notice is what the government is primarily asking the High Court to quash.

This judicial review is not the first attempt of the government to dislodge the Notice.

The first attempt was an Application dated 15 May 2023.

This Application was made under a provision of the Inquiries Act which provides:

“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”

But.

This Application was problematic.

You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.

No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.

As the Application stated:

“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”

And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):

“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.

“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.

“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”

“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“

The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.

The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.

A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.

Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.

And the Application did get the Inquiry to set out its legal position explicitly.

But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.

Now it is.

And here is the government’s statement of facts and grounds.

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What are the merits of the judicial review – that is, will the government win?

To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.

This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.

But.

There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.

Here we need to go back to the Inquiry being a creature of statute.

This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.

The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.

The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.

If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.

If the government can show this, then the Covid Inquiry loses – and the Notice falls away.

But.

The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.

In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.

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Finally, let us consider the greased piglet.

The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.

He appears to want to single-handedly sabotage the government’s legal case:

On this, let us be careful.

There is industrial-scale misdirection afoot.

Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.

And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged  “relevant” – and also note who he is proposing to conduct this all-important search.

We should not get too excited at such claims.

But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.

This is such an unusual judicial review – and in more than one way.

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Disclosure: I am a former central government lawyer.

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Comments Policy

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

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

More on the comments policy is here.

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

1st June 2023

Yesterday this blog set out how the Covid Inquiry may have set an elegant spring-trap for the Cabinet Office.

In essence, the Cabinet Office was (is) being tardy in disclosing various materials, and the Covid Inquiry created a procedural situation that concentrates wonderfully the minds in the Cabinet Office.

The Cabinet Office had asserted last Friday that somehow documents – the content of which the Cabinet Office had only recently and confidently declared as “unambiguously irrelevant” – were not actually in the government’s possession.

This was, ahem, odd.

The Covid Inquiry then deftly put the Cabinet Office to the test on this, with the Inquiry chair insisting that senior officials set out a detailed explanation of how any of this made sense, with the explanation to be attested by a signed statement of truth, that is under the pain of perjury.

The deadline for these statements of truth, or delivery up of all the requested documents, is later today (Thursday 1 June) at 4pm.

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The Cabinet Office’s broader objection to disclosure was (is) that the Inquiry’s request was outside of the Inquiry’s legal powers, and the Cabinet Office says that part of this jurisdictional objection is on privacy law grounds.

This privacy argument, which the government is emphasising in press releases and briefings, is weak if not hopeless.

The disclosed documents will not necessarily be published, only assessed for relevancy by the Inquiry – and the government is already using external leading counsel to assess the relevancy of the documents.

Whether this relevancy assessment is done either by the government’s external leading counsel or by the Covid Inquiry makes little or no difference from a privacy law perspective.

That said, it would be quite interesting to watch the government go to court with a claim under the Human Rights Act and Article 8 of the European Convention of Human Rights, especially as the government’s current policy is to repeal the former and to weaken the impact of the other.

(Perhaps the government could even apply to the European Court of Human Rights for an urgent interim ruling on privacy grounds, before the ability to make such applications is also curtailed.  Ho ho.)

Anyway, this was the stand-off as of yesterday.

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And then – enter a greased piglet, running towards a messy situation for once, rather than away from one.

It was unexpectedly announced that former Prime Minister Boris Johnson had not only provided the Cabinet Office with all the relevant materials, but also that he had no objection to the documents being disclosed in full to the Inquiry.

Indeed, he said that such non-redacted, full disclosure should take place.

Well.

This, at a stroke, placed the Cabinet Office in an awkward predicament.

The Cabinet Office could no longer say that it did not have the documents.

The Cabinet Office now had the documents – and it also had a deadline of today to disclose them to the Inquiry.

And Johnson’s consent to the disclosure of the documents undermined the privacy claim.

Of course, the other parties to the WhatsApp messages in question also have privacy rights, and so Johnson’s expressed consent is not absolutely fatal to the privacy argument.

But Johnson has pretty much pulled a rug from under the feet of the Cabinet Office’s privacy claim.

It will be difficult to maintain a privacy claim in court when Johnson himself has waived any privacy rights.

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Why did Johnson do this?

It is tempting to think that it was mere spite.

The Cabinet Office had, of course, referred Johnson’s diary entires to the police without any notice to Johnson.

And now Johnson has, in turn, undermined the Cabinet Office.

But there may be an explanation other than – or in addition to – spite.

Johnson’s new lawyers must have advised him that there was no solid legal basis to resisting disclosure to the Inquiry.

If there was a sound legal objection to disclosure then it would be surprising for Johnson to happily volunteer the documents in the way he did.

Given that there would be no sound legal basis to resist disclosure, then it would seem Johnson made a virtue – or perhaps in his case, a vice – out of necessity.

(It is should also be noted that this volunteered disclosure also perhaps undermines the legal claims that were briefed to the press by his supporters only days ago, about him bringing data protection and other claims against the Cabinet Office for the referral to the police.)

Of course, it may be that the volunteered disclosure of Johnson of the documents to the Inquiry is not full and complete, and it is never easy to take anything Johnson says at face value, but that does not effect the significance of his consent to the Cabinet Office’s legal position.

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What is the Cabinet Office now to do?

One suspects it will ask the Inquiry for yet another extension – or at least it will want to do so.

The Cabinet Office could now disclose the documents in accordance with the request of the Inquiry.

Or the Cabinet Office, without an extension of the deadline, could breach the deadline of the Inquiry.

This would create a serious situation, where either the Inquiry or the Cabinet Office (or both) would need to commence some form of contentious legal process.

Here the Cabinet Office is not on strong ground, especially because of Johnson’s intervention.

And if the Cabinet Office do go for judicial review, and lose, then that will create a precedent far worse for the government than compliance with the request.

The Cabinet Office may therefore disclose the requested documents on this occasion, while reserving the (purported) right to litigate in future.

We will see.

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How has the Cabinet Office ended up in this mess?

As this blog pointed out recently, government lawyers have a great deal of experience in dealing with inquiries and disclosure exercises, and they are usually quite good at this.

One suspects there is muddle at a more senior level in the Cabinet Office.

This is suggested, for example, by the after hours (and desperate) letter to the Inquiry late last Friday.

The most reasonable explanation for such a late letter is internal delays in decision-making within the Cabinet Office.

A muddle is also suggested by the Cabinet Office resorting to instructing the most senior external government lawyer – the so-called Treasury Devil – to submit a lengthy legal(istic) submission on the “unambiguously irrelevant” content of various documents.

Invoking the Treasury Devil, other than in actual litigation, is a sign of ministerial desperation – as the Northern Irish Protocol affair indicated.

Ministers treat calling in the Treasury Devil as akin to summoning the fifth emergency service.

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As Alan Hansen would say, the Cabinet Office seems all over the place.

The Cabinet Office has got itself into disarray.

And it would appear that this disarray is because of strategic and tactical clumsiness at a senior level within the Cabinet Office, which has now been exposed by the combination a canny resolute Covid Inquiry and the sudden incursion of a greased piglet.

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Will the Cabinet Office meet today’s deadline, absent another extension?

Or will there be litigation of some kind?

Will one side blink, or the other?

Will there be some form of face-saving, fudged compromise?

Who knows.

But it is not a good thing that this comedy of errors is being performed on an early stage of a public inquiry of such immense importance.

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Disclosure: I am a former central government lawyer.

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Comments Policy

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

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

More on the comments policy is here.

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”.

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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.

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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.

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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.”

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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.

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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.”

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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.

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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:

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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.

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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?

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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.

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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.

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Disclosure: I am a former central government lawyer.

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Comments Policy

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

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

More on the comments policy is here.

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

30th May 2023

Techies have a phrase for the principle: GIGO – garbage in, garbage out.

In essence, outputs tend to depend on inputs.

With legal(istic) processes – trials or inquiries – what this principle means is that the outcome of the process can be shaped (and often determined) by what is put in.

In the context of civil litigation, it is often possible to see which party is likely to win once all the evidence has been disclosed by the parties.

Sometimes, a civil case will still go to court for a trial, for one reason or another, but almost all civil litigation comes to an end before that final stage.

Inquiries are, of course, different to litigated cases – not least in that in an inquiry legal rights and liabilities are not determined, and there are not really remedies or sanctions.

Instead, an inquiry will set out the facts (as it has found them) in a report, and may make recommendations – and sometimes an inquiry can also point to (non-legal) culpability.

An affected party, therefore, has an interest in shaping the outcome of an inquiry.

And the most direct way an affected party can shape the outcome of an inquiry is by, in turn, shaping the flow of information available to that inquiry.

In practice, this comes down to what evidence that affected party is obliged to disclose to the inquiry – and to what evidence it can prevent other parties disclosing to that inquiry.

GIGO.

But.

The public interest is in the inquiry having access to all the relevant materials, so that its findings and any recommendations are as sound as possible.

The scope of what is relevant is, in turn, determined by the terms of reference (TOR) of the inquiry.

This means there is often a contest between what an inquiry wants to see and what an affected party wants to provide.

And this is the case for any affected party.

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But.

There is an additional practical problem when one of the affected parties is the government.

For the government is usually very good with inquiries.

The government – especially government lawyers – are skilled and experienced in dealing with inquiries.

This is not a surprise, if you think about it: the one affected party common to many matters for which there is a public inquiry is, well, the state.

The other affected parties will come and go, but the state – especially central government – will be involved in inquiries again and again.

And with this skill and experience comes accumulated insight – especially in how to manage the inquiry as a whole.

The knack is to think backwards from the outcome you want the inquiry to reach, and to then think through about how to shape the process at each stage.

That is why the early stages in any inquiry – the setting of the terms of reference and the disclosure exercises – are so fundamentally important.

For although unexpected things can – and do – happen during the course of an inquiry, the findings of an inquiry and recommendations – and the allocation of any culpability – will usually be largely determined by what happens at the early initial stages.

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This is why the current contest of the government and the Covid Inquiry is profoundly important.

The government wants to itself decide what evidence is relevant to the Inquiry.

Part of this stance is because it appears the government was wrong-footed (or were not thinking or were distracted) when the very wide terms of reference were set.

Had the terms of reference been tighter then the government would not now be as worried at this stage.

The Covid Inquiry – rightly, on any sensible view – instead wants to make the key relevancy decisions.

With an inquiry with a smaller scope, the government may have grounds for pushing back on such ambitious claims.

But this is an inquiry into the biggest public health issue of recent times, and so the benefit of the doubt should be with the inquiry.

The chair of the Covid Inquiry is also a former senior judge (presumably with security clearance) who is well placed to make decisions on relevance.

And it is certainly the case that what is provided to the inquiry will not be published unless it is deemed relevant.

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One can understand why the Cabinet Office officials and lawyers want to keep tight control on what is disclosed to the inquiry.

The government may even litigate to keep this control.

Yet any sensible person will want the government to lose such a case (though it is the nature of litigation that there is no absolute certainty that the government would lose).

For if we want this public inquiry to make the most robust possible findings, and the best possible recommendations, then it needs access to all available information.

And so the Covid Inquiry should not be hindered by the government deciding for itself what is and what is not relevant.

For whatever goes into this inquiry, the “out” should not be garbage.

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Disclosure: I am a former central government lawyer.

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

27th April 2023

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

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

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

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

But.

There is nominal transparency, and there is real transparency.

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

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

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

Only then do you have real transparency.

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

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

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

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

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

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

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

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

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

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

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

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

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

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The significance of the resignation of Dominic Raab

21st April 2023

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

The resignation letter was extraordinary:

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

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

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

But it said much the same.

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

And then the report was published:

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

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

Instead, it looked a mess.

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

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

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

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

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

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

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

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

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

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

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

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

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The Ministry of Justice is in an awful state.

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

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

Joshua Rozenberg sums up that telling situation perfectly:

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

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

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

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

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

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

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

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Waiting for yet another report

20th April 2023

This evening those who take an interest in Westminster politics are waiting for yet another report.

The report – this time into allegations against Dominic Raab, which he denies – has been delivered.

It is reported Raab has read it and sees no reason to resign, and so it is now up to the Prime Minister whether Raab should be sacked, and the Prime Minister has not decided.

It seems not vey long ago we were all waiting for the Sue Gray report, and there have been various other reports and inquiries, some of which have been quietly abandoned.

The purpose of this short post is not to preempt the report: I have not seen it and, as of today, almost certainly neither have you.

Instead it is to mark that, again, reports and inquiries are taking the place of traditional politics.

Perhaps this practice is a good thing: that information is compiled before a decision is made.

But perhaps it also a bad thing: for it enables ministers and others to avoid and even evade responsibility and accountability with an investigation takes place.

It almost a contracting-out of democratic and representative functions, at least in the short- to medium-term.

And the practice is now as much a part of our polity as the more formal elements that would be detailed in a constitutional text book.

Somebody should maybe commission a report into the practice, so that we too can put off doing anything about it.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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