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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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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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 Boris Johnson’s difficulty with the Cabinet Office lawyers – and why it may have wider implications

29th May 2023

Boris Johnson is not happy with the Cabinet Office – and one suspects few will be sympathetic to the former Prime Minister.

But does he, for once, have a point?

Does he, in this particular instance, have any cause for complaint?

Johnson’s grievance is in respect to the referral by the Cabinet Office of certain matters to the police – that is, to the Metropolitan police in respect of what may have happened in Downing Street, and to the Thames Valley police in respect of what may have happened at Chequers, the country residence used by the Prime Minister.

And there is no doubt that Johnson is not happy.  According to a weekend news report:

“When Johnson found out what had happened he was in the United States, a visit that culminated in dinner with Donald Trump last Thursday.

“He and his team were first confused, then apoplectic, then called in new lawyers.

“‘Boris is absolutely furious,’ said one of those in touch with him last week. ‘He was completely flabbergasted and he suspects foul play. He has been spitting feathers. He feels his reputation has been unfairly trashed.'”.

“Apoplectic” is a strong word.

What was the cause of this apoplexy?

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“Apoplexy (noun): A malady, very sudden in its attack, which arrests more or less completely the powers of sense and motion […]”

– Oxford English Dictionary

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A good starting point is the nature of the Covid Inquiry itself.

It is a statutory public inquiry under the Inquiries Act 2005, and this means the Inquiry has formidable legal powers, including to request documents.

Previous posts on this blog (here and here) have set out these powers and also the background to the current and potentially consequential stand-off between the Inquiry and the Cabinet Office.

What this means, in turn, is that the Cabinet Office has to do its own information-gathering exercise so that it is in a position to disclose documents and other material to the Inquiry (even if there is disagreement as to the scope of that disclosure).

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Now let us move to the position of Johnson.

A news report last December told us the following:The report went on to explain:

“The taxpayer will be funding legal fees for Boris Johnson and Matt Hancock when they appear at the official inquiry into the Covid pandemic next year […]

“Even though the two men are no longer prime minister and health secretary, the Government is covering the cost of legal representation for all former ministers who were involved in the official response to the pandemic, as well as people currently serving in those posts.”

One key point here is that the Cabinet Office is dealing with the disclosure to the Inquiry relating to Prime Ministers past and present, as well as to other Cabinet Office ministers.

This is because within the government of the United Kingdom there is not any formal “Prime Minister’s Department” other than the Cabinet Office.

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It is important to note that this issue is distinct from the government paying the legal fees of Johnson in respect of his problems with the House of Commons privileges committee.

That the government is paying the legal fees of Johnson in respect of his problems with the House of Commons privileges committee is actually difficult to justify (as the issue there is in respect of his duties as a parliamentarian rather than directly as a minister).

The payment by the government for the work in respect of a public inquiry is, however, far less controversial – public inquiries into what was done by public bodies can require extensive disclosure exercises with the advice of specialist lawyers, and so it is normal for the government to pay for the work involved.

There is nothing untoward in the government paying the legal costs for all former and current ministers and officials caught up in the work of this Inquiry – and there is certainly a public interest in disclosure and evidence being managed by experienced and specialist lawyers.

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But.

That the government will (and should) fund the legal work required for former and current ministers and officials that does not necessarily mean that the work should be done by government lawyers.

It should be open to former and current ministers and officials to appoint their own lawyers – especially if it felt there is a conflict of interest.

For example, at the Hutton Inquiry the journalist Susan Watts insisted on separate legal representation, as she believed that there was a conflict of interest with the BBC and this separate representation was reportedly paid for by the BBC.

The extent to which this separate legal representation at inquiries should be funded by the government (or an employer) is not easy to determine.  But there is a good argument that there should be funding for the work of disclosure and the provision of evidence, for that is the legal work required for the public good of the process of the inquiry.

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Now, let us go back to December last year.

Johnson was presented with a situation where he could have insisted on getting his own legal representation (perhaps at public expense) or going along with the work being both funded and conducted by the Cabinet Office.

The crucial distinction is that if he had appointed his own lawyers they would have had a direct legal and professional obligation to act in his interests, consistent of course with his obligations to the inquiry (and to any court) and under the general law.

At this point, Johnson could – like Watts at the Hutton Inquiry – insisted on having his own lawyers.

But Johnson either made a decision to go with the Cabinet Office lawyers or (more plausibly) avoided making any decision so that the default was that the work would be done by the Cabinet Office lawyers.

And here we come to the crucial point: the Cabinet Office lawyers have no obligations to Johnson.

The “client” of government lawyers is, well, the government.

Government lawyers also have obligations to the inquiry (and to a court) and they have professional obligations as solicitors and barristers.

But they have no duty to former ministers and officials – nor even to current ministers and officials in respect of ministers’ and officials’ private personal capacities.

So when Johnson handed over the documents to the Cabinet Office he, in effect, loss control of those documents.

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And now we come to another important point: those documents exist, and those documents cannot really be de-invented.

(If those documents had somehow been – ahem – “lost” then that is altogether another legal issue.)

But as the documents exist then the question of disclosure to the Inquiry would have come up at some point – whether it be for the Cabinet Office lawyers or for Johnson’s own lawyers.

The difficulty of what to do with those documents if – and it is an “if” – they contain evidence of wrongdoing would have come up at some point.

Johnson denies that the documents contain any evidence of wrongdoing – and as those documents are not in the public domain, this denial cannot be gainsaid.

Once those documents had been disclosed to the Inquiry even by Johnson’s own lawyers, then this means he and his lawyers would have lost control of the documents at some point.

And depending on what was made of those documents once they were seen by a third party then a referral to the police may have just been a matter of timing.

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But.

Timing is not everything; there is also the question of fairness.

Did the Cabinet Office act unfairly in referring the documents to the police with no notice to Johnson, so that he could have made representations or sought independent legal advice?

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According to the detailed Sunday Times news report, the sequence of events was as follows:

16th May – “lawyers for the government legal service, who were helping Johnson to put together his statement for the Covid inquiry, came across entries from his official Downing Street appointments diary, which suggested there had been gatherings in Chequers and No 10 that may have breached the Covid guidelines”

The senior official at the Cabinet Office is then notified.

We are told that the official feels “duty-bound to pass the material to the police” or run the risk of being accused of breaching his obligations under the civil service code of conduct.

18th May – the documents are sent to the police.  The Sunday Times quotes an official as saying:

“The only assessment we did was whether we should pass it to the police. It is a matter for the police to decide whether it constitutes grounds for an investigation. It would have been totally inappropriate to block it. It would also have been inappropriate to inform the former prime minister [Johnson] unless the police were happy for us to do so. On the Friday they said they were content to inform him as a courtesy.”

19th May – the head of propriety and ethics in the Cabinet Office, called Johnson’s office to inform him.

We can supplement the above timeline with this tweet from the government’s former senior legal official Jonathan Jones:

Jones makes a good point: what were the government lawyers to do?

Remember that (a) the documents could not have been de-invented and (b) the documents would have had to have passed to the Inquiry at some point, even if not via the Cabinet Office.  It is therefore only a question of timing until the documents came to public light.

And if – if – the documents contain problematic content then there would be questions about why the documents had not been previously referred to the police.

Jones also helpfully links to the Civil Service guidance:

The guidance he links to is here (though the pdf seems borked for scrolling).

The booklet “Giving Evidence on Information about Suspected Crimes: A Guide for Crown Servants” does not appear to be on the internet.

But the essence of the guidance is simple: if there is evidence of criminality then the matter should be escalated to the most senior official and it is for them to make a decision.

According to the weekend news reports, this is exactly what happened, and the decision was made by the most senior official at the Cabinet Office.

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What is not clear, however, is why an official said “It would also have been inappropriate to inform the former prime minister [Johnson] unless the police were happy for us to do so”.

On the face of it, this is not a matter, like say suspected money laundering, where there was a real risk of “tipping off”.

No doubt it would have been a difficult, if not excruciating, conversation – but would it actually have been “inappropriate” to not inform a former Prime Minister that a referral may have to be made and for him (or her) to make representations and to now seek separate legal advice?

Somebody cooperating with the government on submissions to a Public Inquiry was suddenly to be dropped in to possible legal jeopardy.

Of course, there is no legal or professional obligation on the civil service to have contacted Johnson in advance – as set out above, the government owes no duties to former ministers or officials.

But the lack of a firm obligation does not, by itself, make it – to use their word – “inappropriate”.

This may not be a word to just nod-along with.

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As this blog has previously averred (here), Johnson’s legal defence to the previous Covid police inquiry was skilfully done.

By framing his roles as “showing leadership” in a work context he deftly side-stepped all but one of the incidents that were referred to the police.

It was an impressive legal strategy, which corresponded neatly with the evidence which had to be explained.

Yet the strategy, having served one purpose well, had a couple of gaps.

First, it did not explain his overall state of knowledge of the Downing Street parties, even if his own role at the gatherings was defensible – and this is what the House of Commons privileges committee is looking at.

Second, it only covers the work gatherings where other employees were present – and so not gatherings either in the Downing Street flat or at Chequers.

Perhaps there are also solid legal justifications for those gatherings.

Here the Sunday Times tells us:

“Johnson called in a separate legal team working for Lord Pannick KC, who has been working for him on the privileges inquiry. By 9pm they had determined that every one of the gatherings in the diary entries was defensible.”

(Note here the delightful small detail of the lawyers’ time-keeping.)

Faced with what may well be a new police investigation, it may well be that Johnson and his lawyers can point to the applicable law and guidance of the time to show that the gatherings were within the legal rules.

Perhaps.

But it may also have been open to the Cabinet Office to have gone back to Johnson for (ahem) clarification as to why the gatherings evidence by the diary entries were within the guidance at the time rather than reporting the matter to the police.

The Cabinet Office was, no doubt, acting within its rights to refer the matter to the police without notice to Johnson and asking for his further input.

But (at least to me) there is a nagging feeling that this matter could have been dealt with better by the Cabinet Office.

Not least because this referral may now cause a moral hazard for other former ministers and officials who otherwise would work with the Cabinet Office in respect of the Inquiry.

Any sensible former minister and official should now consider insisting on separate legal representation, rather than assuming that the Cabinet Office would not do the same to them.

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Of course, Johnson should have (in my view) appointed his own lawyers (at either his or the government’s expense, or a mixture of both).

Had he done so, then the lawyers would have explained the risks to Johnson on disclosing the documents, especially if they contained unwelcome details.

The documents would still have had to have been disclosed, but Johnson would have been appraised of the risks, and he would be advised on what to do next and how and when to make representations.

(And if Johnson were prudent he should also now apply like a shot to be “a core participant” in the inquiry, so as to avoid various further avoidable surprises.)

Of course: if Johnson chose to go with the Cabinet Office on the sole ground of potential additional legal costs then one would need a heart of stone not laugh like a drain.

But putting such mirth aside, one can understand the shock, if not quite apoplexy, of discovering a government department handling your submissions and disclosures to an Inquiry had – without notice – referred you instead to the police.

One can understand why Johnson has now appointed his own lawyers.

He should have done so before.

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One can also understand that the Cabinet Office had to take the matter seriously.

The Cabinet Office would certainly have also faced criticism had they pretended there was not problem if it does turn out that the documents are (literally) incriminating.  Jonathan Jones’ point above is well-made.

It was entirely right that the matter was escalated to the most senior government official – and that official will have to account for the decision they made and how they made it.

And given the lack of any direct obligation to Johnson, the Cabinet Office were within its rights to make a referral to the police.

(The various legal threats reported this week by Johnson against the Cabinet Office, from defamation to data protection, are not convincing.)

But.

Even if we can understand the respective positions of Johnson and the Cabinet Office, this situation does seem a mess

And it is a mess with implications for others – and so thought must go into how these things should be dealt with.

Given the vagueness and ever-changing complexity of the Covid regulations few would feel certain that the documents they provide to the Cabinet Office (and/or the Inquiry) would not also evidence potential breaches of the criminal law.

This is thereby not going to be a one-off problem.

The overwhelming public interest is that the Inquiry gets the evidence it needs.

And risks of referrals to the police for possible prosecutions – for Johnson or for anyone else – may inhibit that overwhelming public interest.

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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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Two set-backs for animal welfare law – and a consolation

25th May 2023

While I prepare a detailed post on Boris Johnson and the Cabinet Office lawyers thingie, this is just a quick post to note a couple of setbacks to another interest of this blog: animal welfare law.

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First, you may recall this blog covering the “Frankenchicken” claim, which I thought was a well-made application for judicial review.

Unfortunately the High Court did not, though the judgment is rather difficult to follow – and I may unpack the judgment at a later date.

But plaudits must go to the Humane League (and, yes, we all know the puns for the 80s pop band) for putting together such an impressively crafted case.

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Second, late today on a quiet parliamentary sitting, the government announced it was reneging on the Animal Welfare (Kept Animals) Bill – even though it was at an advanced parliamentary stage.

There are news reports on this here and here.

You may recall that the Conservative manifesto for 2019 devoted an entire page to animal welfare, making (specific) commitments:

And you may also recall two senior cabinet ministers recently insisting that the House of Lords had to accept that the (generalised) content of the Conservative manifesto as the “will of the people”:

But it would seem the government picks-and-chooses which of its manifesto commitments are serious enough to threaten the House of Lords with, and which the government cannot even be bothered with so that it can progress its own bill.

The reason for this pulling of a bill appears to be that the government does not feel confident that it can resist amendments that would further protect animal welfare beyond the protections promised in the manifesto.

It is a depressing moment for animal welfare law.

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On the bright side, however, there is consolation: the great Chris Packham – who does sterling work not only on animal welfare but also neurodiversity – won his libel case, and the judgment is well worth reading.

(The pic above shows him supporting the “Frankenchicken” claim which was coincidently heard at the High Court at same time as his libel claim.)

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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.”

*

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.)

*

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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Why we now don’t just have “proper” political scandals

23rd May 2023

Today in parliament, during a debate on an urgent question related to the conduct of the current Home Secretary, a backbencher asked a striking and thought-provoking question:

“What’s wrong with this country? We used to have proper scandals abour sex or money, or about PM’s invading Iraq…”

There is an answer to this question, though perhaps not the one he wants or expects.

The reason is that the informal and often hidden ways these sort of issues used to be dealt with are no longer followed.

The hyper-partisanship and opportunism of ministers – especially in the last five or so years – means there is now a general attitude of getting away with things.

The unseen checks and balances provided by self-restraint – the soft constitutional conventions, as opposed to hard(ish) constitutional law – are old hat.

Cummings and Johnson may well be gone – but their damage to our constitutional arrangements lingers.

And so – there being no other way to deal with, say, the conduct of the current Home Secretary – it has become a parliamentary and public matter.

There is nothing as a buffer before any mess-up becomes part of day-to-day politics.

And unless ministers relearn the checks and balances of self restraint – in a word, “constitutionalism” – then it may be that there will be a lot more time and attention on these not “proper scandals”.

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And if Braverman goes, then what?

22 May 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

Who knows.

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

Her replacement might be an actually competent hardline Home Secretary.

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

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

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The commercialisation of private prosecutions

19th May 2023

In the Financial Times magazine this weekend – and on their website (though behind a paywall) – is a fascinating and detailed article on the commercialisation of private prosecutions – especially in respect of shoplifting and online counterfeiting.

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By way of background: usually one way of explaining the difference between criminal law and civil law is that in the former a person is prosecuted by the state, while in the latter a person is sued by another person.

But with private prosecutions, a person can bring criminal prosecutions against another person.

It is an example of the private enforcement of public power.

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Of course, the hope (if not expectation) is that any abuse of these prosecutions would be dealt with by an impartial and independent court looking out for the public interest.

But such prosecutions are outside of the processes the police have of dealing with incidents, and also outside of the processes of the Crown Prosecution Service have in determining whether a prosecution should be brought.

Yes, it is possible for the Crown Prosecution Service to step in and terminate a private prosecution, but that is exceptional.

So what we have are defendants – whose cases would have been dealt with differently had the police or the Crown Prosecution Service – facing harsher sanctions at the criminal courts.

And this is done as a business, as the Financial Times spells out, for those bringing these prosecutions only get paid if they can apply for public funds at the end of a successful prosecution.

It seems the various shops and businesses which are affected by the criminality in question do not contribute to the costs of the prosecution.

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The article points to both a justice gap and to a failure to properly fill that gap.

Many of the shops and businesses nod-along with the private prosecutions because they have no confidence in the police and the Crown Prosecution Service, who in turn are not properly resourced.

And as several of those caught up in the private prosecutions have drugs problems, it can even be contended that some of the prosecutions make no real overall difference to the crime levels, just diverting crime elsewhere from the protected shops and businesses.

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The Financial Times piece is an interesting sideways snapshot of the criminal justice system.

And if you cannot afford to buy the Financial Times tomorrow, and so decide to read it inside the newsagents instead, please do remember not to walk out without paying for the newspaper.

The article will tell you why.

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