WSG Article: UK Covid-19 Inquiry - When Law and Politics Collide

UK Covid-19 Inquiry - When Law and Politics Collide

June, 2023 - Shoosmiths LLP

We look at the legal framework within which the dispute between the UK Covid-19 Inquiry and the Cabinet Office over the former Prime Minister’s WhatsApp messages and diaries has developed, and possible consequences for the Inquiry depending on the outcome.

What has the Cabinet Office been asked to provide?

On 21 April 2023, Baroness Heather Hallett, Chair of the UK Covid-19 Inquiry (‘the Inquiry’) issued a Section 21 Notice to the Cabinet Office (‘the Notice’). The Notice was issued under Section 21(2)(b) of the Inquiries Act 2005 (‘the Act’).

Section 21(2)(b) of the Act provides that ‘The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable… to provide any documents in his custody or under his control that relate to a matter in question at the inquiry’.

Failing to comply with a Section 21 Notice without reasonable excuse is a criminal offence, punishable with a fine not exceeding £1,000 and/or imprisonment for a maximum of 51 weeks.

The Notice required disclosure of the following to the inquiry:

‘Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned / used by Henry Cook and which:
- Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government’s response to Covid-19 (‘group messages’); or
- Were exchanged with any of the individuals listed in Annex B (‘individual threads’).
Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned / used by the former Prime Minister, The Rt Hon Boris Johnson MP and which:
- Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government’s response to Covid-19 (‘group messages’); or
- Were exchanged with any of the individuals listed in Annex B (‘individual threads’).
Unredacted diaries for the former Prime Minister, The Rt Hon Boris Johnson MP covering the period 1 January 2020 to 24 February 2022.’

The Henry Cook referred to is a former Senior Adviser to the Prime Minister on Covid-19. The individuals listed in Annex B consist of government advisors such as Professor Sir Chris Whitty, Chief Medical Officer, Sir Patrick Vallance, former Chief Scientific Adviser, and various MPs, including the now Prime Minster, The Rt Hon Rishi Sunak MP.

The full Notice can be found here:

How did the Cabinet Office react to this?

On 15 May 2023, the Cabinet Office filed an application under Section 21(4) of the Act asking the Chair to revoke the entirety of the Notice. Section 21(4) provides that any claim made by the recipient of a Section 21 Notice that he is unable to comply with, or that it is not reasonable in all the circumstances to require him to comply with, is to be determined by the Chair.

The ground for revocation was given, broadly, as a jurisdictional objection to the terms of the Notice. The Cabinet Office drew the Inquiry’s attention to the limitation on its powers under section 21(2)(b) such that only documents “that relate to a matter in question at the inquiry” can be demanded. The Cabinet Office argued that in undertaking its own determination of relevance according to the Inquiry’s Terms of Reference, and that compliance with the Section 21 Notice would require it to provide “unambiguously irrelevant material”, and that this is outside of the Inquiry’s statutory powers.

The full Cabinet Office response can be found at Covid Inquiry - GLD S21 Application - FINAL.docx (covid19.public-inquiry.uk)

What happened then?

On 22 May 2023, Baroness Hallett issued a Ruling in respect of the Section 21(4) Application. In it she reiterated that “on the basis of [her] judgement… the entire contents of the specified documents are of potential relevance to the lines of investigation being pursued by the Inquiry”. The Inquiry considered but rejected the contention that the Notice was issued unlawfully (although it should be noted that Baroness Hallett did not concede that a challenge under Section 21(4) was necessarily the appropriate route for a jurisdictional objection to be made, since it does not fit neatly within the grounds for challenge set out therein). The ruling takes the position that the Section 21 Notice was within the scope of the Inquiry’s powers, and that therefore it should not be revoked.

The full text of the ruling can be found here: Ruling in respect of a S21 Notice issued to the Cabinet Office, dated 22 May 2023 - UK Covid-19 Inquiry (covid19.public-inquiry.uk)

The Cabinet Office thereafter took the only route of appeal open to it upon disagreeing with a ruling made by the Inquiry – seeking permission for a Judicial Review by the High Court.

The rationale for the challenge was given in the Cabinet Office’s Statement of Facts and Grounds dated 1 June 2023 as follows:

“The compulsory powers conferred on inquiries by the 2005 Act do not extend to the compulsion of material that is irrelevant to the work of an inquiry.
Under s.21, notices must be limited by reference to relevance. If a notice is cast by reference to documents or classes of document, the class must be sufficiently targeted so as to ensure that each such document is relevant to the work of the inquiry. The Notice exceeds that limit and is accordingly ultra vires.
The Chair concluded that the entirety of the material compelled by the Notice was, or might be relevant, to the Inquiry’s work. That conclusion was irrational given the breadth of the Notice, and in the light of the material before her (including the fact that she had been told that, following the review already noted, the Notice covered a significant range of irrelevant material).”

This is substantially a re-statement of the ‘jurisdictional objections’ raised in the Section 21(4) application. We have not been able to find any reports of previous cases before the appellate courts where the scope of an Inquiry’s powers under Section 21 have been considered, so this is likely to set a precedent for future Inquiries.

The Cabinet Office has requested an expedited hearing where the question of permission and the substantive claim are heard by the High Court on the same day.

The full Statement of Facts and Grounds can be found here: Statement_of_Facts_and_Grounds_-_To_Publish.pdf (publishing.service.gov.uk)

The Inquiry has yet to respond to the Application.

Meanwhile, it seems that the former Prime Minister Boris Johnson has provided the Inquiry with a set of unredacted WhatsApp messages dating back to spring 2021, and undertaken to provide older ones if he can access them, alongside requesting that senior officials provide his journals directly. This could render the Cabinet Office’s Judicial Review largely obsolete, since the Inquiry would be in possession of the disputed material by means of a different route. But for now, let’s assume the claim proceeds.

What does this mean for the future of the Inquiry?

If the Cabinet Office’s claim is unsuccessful, the Notice will stand, and either the WhatsApp communications and the Prime Minister’s diaries will have to be provided to the Inquiry in unredacted form, or the Cabinet Office will face criminal sanctions. This outcome would leave the Inquiry unshaken, but no doubt cause a ripple of concern for many existing and potential Core Participants and material providers – the Inquiry has teeth, and it is not afraid to use them.

If the Cabinet Office’s claim is successful, and the Notice is deemed to be unlawful, then the Inquiry will not be able to demand the unredacted WhatsApp communications or the Prime Minister’s diaries. This outcome would undoubtedly cause a storm for the Inquiry. It may be that Baroness Hallett would be able to ride it out, accept the decision of the High Court with grace, and move on. Or, it may cause the Inquiry a great deal of difficulty in terms of the scope and extent of disclosure it seeks going forward. Baroness Hallett may feel, or may be forced to accept that others feel, her position is compromised. The noise to this effect has already started. Elkan Abrahamson, a solicitor representing bereaved families before the Inquiry, is quoted as saying “…there is a concern that if they [the Inquiry] don’t win, the chair quite clearly having said that she needs to see this material in order to have a proper inquiry, the courts say to her well you can’t see it, it seems to me the only logical response of the chair is to resign because she can’t properly do her job. So I think this is an existential struggle between politics and the inquiry”. There is a risk that public confidence in the Inquiry could be undermined, such that it loses its mandate to effect change. Inquiries need the trust of the public to remain meaningful. As former Lord Chief Justice Lord Woolf explained in the preface to the 2015 CEDR Guidance on Public Inquiries[1]:

“Inquiries play a very important role in our constitutional arrangements. The independence and thoroughness of their work both contributes to public trust in those institutions which are subject to review by Inquiries and means that the public places a great deal of trust in the Inquiries themselves. Those who are responsible for conducting Inquiries and in particular their Chairs bear a heavy responsibility to ensure that the way they are conducted meets the high expectations of the public.”

Whatever the outcome of the Judicial Review claim, it is likely to have far-reaching consequences for the UK Covid-19 Inquiry, or its participants at least, and set a precedent around the lawful scope of Section 21 Notices for future Public Inquiries. Whether this precedent helps or hinders the administration of future Inquiries remains to be seen.

Resources