What does the Cabinet Office's judicial review challenge to the Covid-19 Inquiry entail, and where is it going?

Tuesday 6 June 2023

Tim Baldwin of Garden Court Chambers provides an initial comment on the Covid-19 Inquiry.

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The full published grounds of judicial review are available to read here. There is also a witness statement in support of the claim here and a letter to the Covid-19 Inquiry of 1 June 2023 here.

The issue in the claim centres on the breadth of the subject matter or material sought by Baroness Hallett, as set out in the annexes to the notice under s 21(2)(b) Inquiries Act 2005 2023-04-28 Section 21 Notice for the Cabinet Office. Annex A(i) refers to unredacted WhatsApp messages of 1 January 2020 – 24 February 2020 held by Henry Cook, in respect of the UK Government’s response to Covid-19 in communication with individuals identified in Annex B. It also refers to those of the former Prime Minister, Boris Johnson, over the same dates and in communication with the same individuals, together with his unredacted diaries over the same period.

The notice also allows the Cabinet Office to make an application to Baroness Hallett by 9 May 2023, if it cannot comply with the requirements or if it is unreasonable for the Cabinet Office to do so, pursuant to s 21(4) Inquiries Act 2005. Annex A(ii) relates to provisions of notebooks containing contemporaneous notes of Boris Johnson between 1 January 2020 and 24 February 2022 in an unredacted form, save for issues of national security sensitivity. The Cabinet Office was also given permission to object by 15 May 2023. The Cabinet Office made an application on 15 May 2023 to revoke the notice under s 21(4) of the Act and Baroness Hallett, on 22 May 2023, produced a fully reasoned decision with the advice of Counsel to the Inquiry dismissing the application, and extending compliance with an original notice of 4 pm on 30 May 2023. Such compliance was extended to 4 pm on 1 June 2023 with the requirement that the Cabinet Office produces a witness statement setting out what documents it held.

The terms of reference of 28 June 2022 under s 5 of the Act are very broad and can be found here. The structure of the Inquiry is “In order to allow a full and focused examination of all of the different aspects of the pandemic that are covered in the Terms of Reference, Baroness Hallett has decided to divide the Inquiry’s investigation into Modules", see here.

The grounds of judicial review

The claim for judicial review relates to the limits of the powers of the Inquiry to require the provision of the material sought and the Cabinet Offices argues:

“(1) 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.

(2) 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.

(3) 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).”

The thrust of the claim is that the powers of compulsion of documents under s 21(2)(b) of the Act are limited to those which are relevant to the inquiry in question as a matter of statutory construction under s 21 of the Act and exercisable by the terms of reference s 21(5). Further, the intention of Parliament in the legislative framework was not to confer a power on the Inquiry to compel the production of documents which are not relevant to the Inquiry. Also, this has to be interpreted against the background of the common law limiting disclosure to the “train of inquiry” and further protection of interests of privacy under Article 8 of the ECHR and the UK GDPR. The Cabinet office also argues the disclosure goes beyond that contemplated under the Civil Procedure Rules in Courts and makes the submission that the notice is ultra vires on its face as in essence it is bound to cover a significant quantity of documents which are irrelevant. This is set out in some detail in paragraphs 19 – 32 of the grounds.

The grounds go further to argue that Baroness Hallett’s ruling maintaining the notice that the entirety of the range of documents covered by the notice is “potentially relevant” is an “untenable, irrational conclusion” which in its essence as set out in paragraphs 33 – 46 of the grounds would seem a high hurdle to be met given the wide discretion given to Baroness Hallett under the Terms of Reference and s 21 of the Act.

The claim in itself does raise issues of public importance in respect of the limits of the statutory powers of Inquiries under s 21 of the Inquiries Act 2005 and in the context of the Covid-19 Inquiry ministerial communications.

The Cabinet Office recognises the need for an expedition and the requirement to meet the timetable for the inquiry and seeks an expedited “rolled up” hearing in the Divisional Court with additional submissions on the protection of unredacted copies in open court.

As yet, no response from Baroness Hallett on behalf of the Covid-19 Inquiry has been produced and no order of the court has been published.

Has judicial review ever been used before in decisions of a statutory inquiry?

In the Saville “Bloody Sunday” Inquiry there were judicial review challenges to decisions and to preliminary rulings of Lord Saville on issues of anonymity under the Tribunals of Inquiry (Evidence) Act 1921 heard by the Court of Appeal  in Lord Saville of Newdigate & Ors v Widgery Soldiers & Ors [2001] EWCA Civ 2048 (19th December, 2001) (bailii.org) and A & Ors, R (on the application of) v Lord Saville of Newdigate & Ors [1999] EWCA Civ 3012 (28 July 1999) (bailii.org) where Lord Woolf MR stated at paragraph 38:

“Turn to the role of the courts on judicial review to ensure procedural fairness. This need for fairness was a matter central to the report of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon in 1966. The Commission having come to the conclusion that the 1921 Act type of tribunal should be retained subject to the qualification set out in the Report went on to consider in detail how to improve the safeguards for witnesses and interested parties. Because of the need for fairness, many of the recommendations of the Commission are now conventionally adopted, not only by statutory tribunals but in the case of other inquiries, including departmental inquiries. The Royal Commission made it clear that they did not believe that it could ever be right for an inquiry of this kind to be held entirely in secret (para. 39).

In Re Pergamon Press Ltd [1971] Ch. 388 Lord Denning MR, said of Board of Trade inspectors, that they must act fairly. He went on to indicate that inspectors have a duty to protect witnesses. He recognised that inspectors "must be masters of their own procedure" but subject to the overriding requirement that "they must be fair". Although we are here concerned with a very different type of inquiry from that being considered in the Pergamon case, it can equally be said of this Tribunal that while it is master of its own procedure and has considerable discretion as to what procedure it wishes to adopt, it must still be fair. Whether a decision reached in the exercise of its discretion is fair or not is ultimately one which will be determined by the courts. This is because there is an implied obligation on the Tribunal to provide procedural fairness. The Tribunal is not conducting adversarial litigation and there are no parties for whom it must provide safeguards. However, the Tribunal is under an obligation to achieve for witnesses procedures which will ensure procedural fairness. (See Lloyd v MacMahon [1987] AC 625 at pp. 702H-703A per Lord Bridge of Harwich and R v The Secretary of State for the Environment, ex parte Hammersmith and Fulham LBC [1991] 1 AC 521 at p. 598F.) 

As to the content of the requirement of procedural fairness, this will depend upon the circumstances and in particular on the nature of the decision to be taken (see Council of the Civil Service Unions v Minister of Civil Service [1985] AC 374 at p. 411H per Lord Diplock and at p. 415A/B per Lord Roskill relied upon by Mr Clarke on behalf of the Tribunal in further submissions which he made to the court at its request.) The requirement of procedural fairness for witnesses is well recognised in the courts by allowing witnesses to give evidence behind screens. A defendant opposing the evidence being given in this way could make this a ground of complaint on appeal. At this inquiry where there are no defendants the requirement of procedural fairness surely involves an obligation to be fair to witnesses, including, for example, protecting them when necessary or giving them notice in a Salmon letter of proposed findings of improper conduct.”

 Thus, in judicial review, the court has supervisory jurisdiction primarily on issues of procedural fairness.

Government playing catch up: Current guidance on use of WhatsApp

In March 2023, the Government issued Guidance on using non-corporate communication channels (“NCCCs”) such as WhatsApp, Private email and SMS) for government business and this is to be read with Attorney General’s Guidance on Legal Risk. The updated guidance on the appropriate use of NCCCs in paragraph 8 – 10 states:

8 - In general, it is expected that you use government systems for government business. Any use of NCCCs for significant government business engages your recordkeeping responsibilities.

9 - If you are accessing a NCCC on a corporately managed device:

a - Particular care should be applied if communicating significant government information; and/or information with additional marking (including information marked -SENSITIVE) requiring additional protective controls or behaviours.

b - You should use your discretion, exercising professional judgement if communicating any logistical or other non-significant government information.

10 - If you are accessing a NCCC on a privately owned and managed device:

a - You would require exceptional circumstances to justify communicating significant government information; and/or information with additional marking (including information marked -SENSITIVE) requiring additional protective controls or behaviours. Any use in these circumstances should be reported to your Knowledge and Information Management team and Head of Unit.

b - You should pay due regard to your security responsibilities if communicating any logistical or other non-significant information.

11 - Information classified “SECRET’’ or “TOP SECRET” must not be shared via NCCCs

Discussion of events so far

The heart of the dispute between the Cabinet Office and the Covid-19 inquiry turns on the interpretation of s.21(2)(b) and 21(5) of the 2005 Act and the limits on the compulsory power to produce documents ‘that relate to a matter in question at the inquiry” and also who decided who sifts through evidence to determine whether it is relevant to the issues in the Inquiry or not.

On the face of the claim and the broad terms of reference, it would seem that the Cabinet Office may have an uphill struggle, and there is no reason to believe that Baroness Hallett and her team are not well equipped to deal with this as an inquisitorial exercise.

A further “fly in the ointment” is that Boris Johnson has stated he is willing to provide unredacted documents to the Inquiry but appears not to have access to a major amount of phone messages prior to May 2021. However, it is unclear whether this will or is permitted to happen.

The risks are that if unredacted documents or limits on the documents sought are not provided to Covid-19 Inquiry, there will be a loss of public confidence in its work.

It is always difficult to decide on what the outcome of any judicial review will be, but whatever the outcome, it is likely to impact the conduct of future statutory inquiries, the crafting of the scope of their terms of reference, transparency and public confidence in any report produced. Also, given the updated guidance on NCCCs, it will impact whether future record-keeping and ministerial decision-making will be more formalised.

It is envisioned that there will be a series of blog items following developments in the Covid-19 Inquiry.

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