The High Court has today ruled that the former First Minister of Wales, Carwyn Jones, acted unlawfully when setting up the independent inquiry into the death of former Welsh Assembly member Carl Sargeant. As a result, the Operational Protocol for the independent inquiry into Mr Sargeant’s death will need to be revisited.
Lord Justice Haddon-Cave and Mr Justice Swift upheld a legal challenge from Mr Sargeant’s wife, Bernie, that a statement issued by the First Minister’s office had given her “a legitimate expectation” that the inquiry and its procedures would be set up and decided by the Permanent Secretary, Shan Morgan, independently of the First Minister.
The press statement issued on 10 November 2017 said the First Minister agreed that there was a need for an independent inquiry and that it would be done “separately from his office”. However, the judges found that Ms Morgan “had her hands tied” as the First Minister had already given her a fixed “remit” as to how the investigation was to be conducted and what procedures were to be followed.
The First Minister’s office argued that the statement was merely an indication of present, rather than future, intention, and that it should have been obvious that Ms Morgan was working to a careful remit given to her by the First Minister. The judges disagreed, ruling that the statement was “an undertaking as to how things would be handled in the future”.
In their ruling, they say:
“It is clear, however, that the First Minister and his officials acted in breach of the representations made in the Press Statement in three principal respects. First, the Permanent Secretary did not have a free hand: she was already subject to an unpublished ‘remit’ from the First Minister. Second, the Permanent Secretary did not carry out the preparations for the inquiry ‘separately from the First Minister’s office’: during March to May 2018 she discussed the Investigator and Family’s proposed amendments with the First Minister and sought his approval and authorisation for any changes. Third, the First Minister continued to have control of the process: indeed, he effectively had the last say and controlled the final form of OP [Operational Protocol].”
As a result, the judges found that the First Minister did act unlawfully, saying:
“It would – in layman’s terms – be unfair for the First Minister both to retain the political capital of the announcement that the work necessary to establish the Investigation would be undertaken independently from his office, and to retain the power to decide what the arrangements for the investigation should be. In our view, because of the 10th November 2017 Press Statement, it was also unlawful for him to do this. On this ground alone, we allow the Claimant’s application for judicial review.
“There was a simple step which the First Minister could have taken before he signed off on the final form of the OP on 9th July 2018: he could have informed the Claimant that he had already given the Permanent Secretary a ‘remit’ as to the terms of the OP and he would, in fact, be the final decision-maker on the final form of the OP. The Claimant could then have made informed objections and representations appropriately.”
The ruling means that paragraphs 30 and 32 of the Operational Protocol relating to oral evidence being heard in private and the ability of the family’s lawyers to ask questions of witnesses will now need to be reviewed.
Neil Hudgell of Hudgell Solicitors represents Mrs Sargeant. He says: “The Sargeant family were completely unaware of the actions of the First Minister behind the scenes, despite his assurances of independence. It is hugely regrettable that they have had to take matters before the High Court to shine a light on what have proven to be empty words from the former First Minister. Today’s ruling does at least address some of the long-held concerns they had about the independence of the inquiry.
“I hope that the Welsh Government and the inquiry chair will now move swiftly to meaningfully consult with the Sargeant family about a revised Operational Protocol. However, I would remind everyone that there are no victors in this process. The Sargeant family are still without a much-loved husband, father, son and brother.”
Leslie Thomas QC, Joint Head of Garden Court Chambers and Sheryn Omeri of Cloisters Chambers represent Mrs Sargeant instructed by Neil Hudgell of Hudgell Solicitors. They represented Mrs Sargeant at the inquest into the death of Carl Sargeant. Leslie Thomas QC is a member of the Civil Liberties, Inquests & Inquiries and Public Law Teams at Garden Court Chambers.
Statement text from First Minister’s office on 10 November 2017:
“Further to the First Minister’s comments yesterday about the need for independent scrutiny of his actions and decisions in relation to Carl Sargeant, he agrees that there should be an independent inquiry and it would be proper to ask a senior QC to lead that work. To ensure this happens separately from his office, the First Minister has asked the Permanent Secretary to begin preparatory work for this inquiry, and to make contact with the family to discuss terms of reference and the identity of the QC. It is our understanding that such an inquiry should not take place before the outcome of a Coroner’s Inquest – but we will take further advice on this matter.”