Covid, the Cabinet and a tussle over disclosure: R (Cabinet Office) v The Chair of the UK Covid-19 Inquiry

26 July 2023 by Gareth Rhys

Introduction

In a decision that may come as little surprise to those working in the fields of inquiries and public law, the Divisional Court consisting of Dingemans LJ and Garnham J dismissed the Cabinet Office’s application for judicial review of a notice issued by Baroness Hallett, the Chair of the UK Covid-19 Inquiry (“the Inquiry”) requesting the production of WhatsApp messages.

The issues for determination related to the scope of the powers of the Chair under the Inquiries Act 2005 to seek and obtain material in the course of her investigations pursuant to the Inquiry’s Terms of Reference. The Cabinet Office sought to argue that some of the material sought by the Chair was “unambiguously irrelevant” to the Terms of Reference. The Chair’s position was that all documents she requested were of “potential relevance” to her lines of investigation. The Divisional Court gave permission to apply (i.e. met the threshold for review and the claim raised an important issue as to the interpretation of the Inquiries Act 2005) but went on to dismiss the substantive claim.

The case is important for clarifying the following propositions in relation to inquiries set up under the Inquiries Act 2005:

• Inquiries have a latitude to “fish” for documents by making “informed but speculative requests” that are relevant to lines of inquiry;
• A notice issued by an inquiry to require the production of documents that “relate to a matter in question at the inquiry” is valid even where that notice might also yield irrelevant documents; and
• The existence of the mechanism under s21(4) of the Inquiries Act 2005 for a recipient of a notice to apply to the Chair if “it is not reasonable in all the circumstances to require him to comply” , which provides a means by which to argue that a document does not “relate to a matter in question at the inquiry” was inconsistent with the Cabinet Office’s position that a notice seeking “obviously irrelevant” material was unlawful per se.

The facts

In May 2021, during his time as UK Prime Minister, Boris Johnson announced that he would establish an inquiry under the Inquiries Act 2005 into the Covid-19 pandemic in the UK. After a public consultation, broad Final Terms of Reference were published, providing that “the Inquiry will examine, consider and report on preparations and the response to the pandemic in England, Wales, Scotland and Northern Ireland, up to and including the Inquiry’s formal setting-up date, 28 June 2022”. The Final Terms of Reference identified a number of aims of the Inquiry, including to examine the response and impact of the pandemic in the UK (Aim 1) and to identify lessons to be learned to inform future pandemic preparedness (Aim 2). [6-8]

Module 2 is the module looking at, and making recommendations upon, the UK’s core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 until February 2022. In Module 2, the Inquiry will particularly scrutinise decisions of the Prime Minister and his Cabinet as advised by civil servants and other senior advisors. The published list of issues for Module 2 includes “To what extent did informal communication (such as WhatsApp messaging) contribute to key strategic decision-making?” [9-10]

Rule 9 of the Inquiry Rules 2006 (SI 2006/1838) (“the Inquiry Rules”) is the process by which the Inquiry obtains evidence for review and analysis. In a request for documents that are of potential relevance to the Terms of Reference, the Inquiry’s published protocols required providers of material to provide it in clean, unredacted form. [11]

Between September 2022 and March 2023, the Inquiry issued requests under Rule 9 of the Inquiry Rules to the Cabinet Office, Henry Cook (senior advisor to Boris Johnson) and Boris Johnson for, amongst other things “key Cabinet Office emails and other correspondence in relation to the issues you have discussed in your witness statement […] any informal or private communications in the Cabinet Office about the Government’s response to Covid-19 of which you were part including informal groups (such as text messages and WhatsApp groups)”. The Inquiry insisted on clean unredacted WhatsApps, but the Cabinet Office raised concerns about the security and sensitivity of the information contained in the material. Consequently, the Cabinet Office maintained that it was entitled to redact the messages for relevance. Roughly a third of the WhatsApp messages provided by the Cabinet Office were redacted on the basis they were “unambiguously irrelevant”. [13-18]

On 28 April 2023, the Chair of the Inquiry issued a notice under s21 of the Inquiries Act 2005 (“the s21 Notice”) requiring the Cabinet Office to produce various types of documents in unredacted form.

The s21 Notice in relation to the WhatsApp messages were summarised in the ruling by the Chair as being: “[…] WhatsApp communications recorded on devices owned or used by the former Prime Minister Boris Johnson MP and also an adviser named Henry Cook, comprising exchanges between senior government ministers, senior civil servants and their advisers during the pandemic (including both group messages and also messages between individuals (or ‘threads’))”. The s21 Notice stated that the request was made on the basis that the Chair considered the entire contents of the specified material to be “potentially relevant” to the lines of investigation of the Inquiry. The s21 Notice set out that the Cabinet Office could apply for the revocation or variation of the notice under s21(4) of the Inquiries Act 2005 (“the s21(4) Application”). On 15 May 2023, the Cabinet Office made an application to revoke the s21 Notice in its entirety. [19-24]

The Chair ruled on the s21(4) Application that the documents were significant in two ways: they contained information “potentially relevant” to Module 2 and there was an expectation by the core participants and the public that all relevant documents were disclosed for the Inquiry. She also rejected the challenge to her own vires to issue a notice in respect of material characterised by the Cabinet Office as “unambiguously irrelevant” because it “wrongly allocates to the holder of the documents the final decision on whether documents are or are not potentially relevant to the inquiry’s investigations”. The Chair pointed out that some material that had been originally marked as “unambiguously irrelevant”, the Cabinet Office now agreed was relevant. In her ruling, the Chair was also satisfied that there was no infringement of Article 8 of the European Convention on Human Rights nor the UK General Data Protection Regulations. [26-32]

The Cabinet Office’s case

The Cabinet Office challenged the s21 Notice and the Chair’s ruling as follows [34]:

(1) the compulsory powers conferred on inquiries by the Inquiries Act do not extend to the compulsion of material that is irrelevant to the work of an inquiry; 

(2) a notice issued pursuant to s21 of the Inquiries Act 2005 must be limited by reference to relevance; 

(3) the Chair’s conclusion that the entirety of the material was or might be relevant to the Inquiry’s work was irrational given the breadth of the s21 Notice.

The Cabinet Office submitted that the notice was ultra vires because it was not limited by reference to relevance and was made by reference to classes of documents that was bound to include significant amounts of irrelevant material. The requirement for every document to “relate to a matter in question at the inquiry” was a precedent fact but the notice was not sufficiently targeted so as to ensure this. Wording providing such a limitation ought to have been included in the notice. In the Cabinet Office’s submission, it was not within the Chair’s discretion to consider; it was enough to show that a single document was irrelevant to the Inquiry’s terms for the notice to be ultra vires although in this case, roughly a third of documents were irrelevant. [35]

The Chair’s case

The Chair’s response to the Cabinet Office’s submissions was as follows [37]:

(1) The correct interpretation of s21 of the Inquiries Act 2005, which empowers the Chair of the Inquiry to require production of any documents that “relate to a matter in question at the inquiry”, is that it includes all documents that the Chair of the Inquiry reasonably considers are “potentially relevant” to her ongoing investigation;

(2) This was not a case of precedent fact because an inquiry was entitled to explore lines of investigation and the Chair was entitled to take the view that the requested documents were potentially relevant to her ongoing investigation;

(3) The Cabinet Office had failed to show that the Chair’s conclusion that the entirety of the documents was potentially relevant or her decision to reject the s21(4) Application were irrational.

The judgment

The Divisional Court gave permission to the Cabinet Office to apply for judicial review because the claim gave rise to issues about the proper interpretation of s21 of the Inquiries Act 2005, but went on to dismiss the Cabinet Office’s claim on the substantive issues.

On the validity of the s21 notice the Court held that the Chair’s notice issued to the Cabinet Office was valid.

The Court began with a statement of the basic position as to the exercise of the functions of the Inquiry [61]:

We agree that the Inquiry’s powers derive from the Inquiries Act. The Inquiry may exercise functions only within its terms of reference pursuant to section 5(5) of the Inquiries Act. In this case the terms of reference are very wide, but they are not without limits. The Chair of the Inquiry is, subject to the overarching duty of fairness, entitled to direct the procedure to be employed by the Inquiry. The Chair of the Inquiry may, pursuant to section 21(2)(b), by notice require a person to provide documents “that relate to a matter in question at the inquiry”, which picks up the wording used in section 5(6)(a) of the Inquiries Act .

The Court held that the s21 Notice was for the production of documents of “that relate to a matter in question at the inquiry” because the classes of documents related to: a WhatsApp group established for the purpose of communicating about the Inquiry; WhatsApp threads between Ministers and advisers dealing with the Covid-19 pandemic; and Boris Johnson’s notebooks were very likely to contain information about decision-making. The fact that the Cabinet Office agreed that two thirds of the WhatsApps “relate to a matter in question at the inquiry” showed the Inquiry was justified in its request. [62-63]

The fact that the s21 Notice yielded some irrelevant documents did not invalidate the notice, nor did it mean that the power under s21(2)(b) of the Inquiries Act 2005 could not be lawfully exercised, giving the following reasons:

65.  […] First the authorities referred to above show that inquiries are to be given a latitude, not provided to parties in civil proceedings, to enable them to “fish” for documents, meaning to make informed but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry. Such an exercise is bound to lead to the inclusion of some irrelevant material. This fact does not answer the question but suggests that the approach contended for by the Cabinet Office needs to be carefully examined.

66.  Secondly the fact that a request for documents in civil proceedings for disclosure may yield some irrelevant documents does not invalidate the request, it simply means that the irrelevant documents may be redacted. It was common ground that the analogy with civil proceedings could only be a loose one, because there were different rules applying for civil proceedings and civil proceedings pursue a different aim to public inquiries, but it would be surprising if a valid request in civil proceedings made under the former Rules of the Supreme Court (“relating to any matter in question in the action”) might yield irrelevant documents and still be lawful, but such a request by an inquiry acting under a statutory power permitting requests for documents (“that relates to a matter in question at the inquiry”) would be unlawful.

67.  Thirdly the scheme of the Inquiries Act recognises that irrelevant documents might be obtained by a section 21 notice. This is why there is a provision in section 21(4) enabling a party required to produce documents to make an application to the Chair of the Inquiry saying that “it is not reasonable in all the circumstances to require him to comply”. One of the grounds that a recipient of such a notice might rely on is that although the document was lawfully requested as part of a class of documents under section 21, the document caught by the request does not, as a matter of fact, relate to a matter in question at the inquiry. In this sense the statutory and factual limitation on the power exercised under section 21(2)(b) is preserved.

In its analysis of the third reason, the Court held that on such an application under s21(4) of the Inquiries Act 2005 it will be for the Chair to determine. If the Chair rules that the document does relate to a matter in question at the inquiry, that person may refuse to produce the document and the question may be determined by the High Court pursuant to s36 of the Inquiries Act 2005. The existence of this scheme was inconsistent with the Cabinet Office’s suggestion that obtaining one “obviously irrelevant” document means that the precedent fact for a lawful request under s21 does not exist. A person with such a document is protected by virtue of s21(4). The Chair of an inquiry may examine contested documents and will return them if they are “obviously irrelevant”. [68-71]

The Court rejected the allegation of irrationality because the Chair of the Inquiry was, for the reasons given above, entitled to take the view that the documents requested related to a matter in question at the inquiry as identified in the notice and ruling (referring again to the two thirds of WhatsApps that the Cabinet Office agreed were relevant). This ground substantially overlapped with the challenge to the validity of the s21 Notice and failed for the same reasons. [72-73]

Comment

In some respects, this case was unusual. In this claim the Government was the Claimant, whereas in most judicial review claims it is necessarily the Defendant. The is made all the more surprising by the fact that this Government and its immediate predecessors have adopted an increasingly hostile attitude towards judicial review, following a number of high-profile cases that have been decided against the Government. 

Nevertheless, as mentioned at the outset, the judgment of the Divisional Court was unsurprising. This is because the Terms of Reference frame the scope and purpose of the Inquiry broadly. Pursuant to these Terms of Reference, the powers of the Chair under the Inquiries Act 2005 are deliberately wide-ranging. Furthermore, the importance of an inquiry’s independence and its ability to decide for itself what is relevant go to the heart of its function. In this respect, the Divisional Court was, understandably, seeking to ensure that this function was protected. Although an anticipated outcome, the judgment is useful in providing guidance and clarity as to the role and powers of the Chair of an inquiry established under the Inquiries Act 2005. The determination of potential relevance is firmly in the hands of the Chair, subject to a light-touch supervisory role of the High Court.

On the Cabinet Office’s motivations behind its unsuccessful challenge, the Attorney-General said that it had been “perfectly proper for government to ask a novel question” and that the Government “had not previously been entirely clear on the meaning of the Inquiries Act 2005 as to what to do with material that is irrelevant. We were able to get some clarity from the court. We were not displeased with all aspects of the judgment”^[1]. It appears that there will be no appeal and no further challenges to the s21 Notice issued by the Chair. In a tweeted statement in response to the outcome, the Cabinet Office stated that the Court reached “a sensible resolution” and declared that it would comply with (i.e., not appeal) the judgment^[2], although there is still some material requested by the Inquiry in the s21 Notice that remains to be disclosed^[3].

Gareth Rhys is a Barrister at 1 Crown Office Row

Natasha Barnes of 1 Crown Office Row was instructed on behalf of the Defendant but was not involved in the writing of this blogpost.

^[1] https://www.lawgazette.co.uk/news/ag-defends-judicial-review-over-covid-19-inquiry-messages/5116609.article

^[2] https://twitter.com/cabinetofficeuk/status/1676948912597504002?s=20

^[3] https://www.theguardian.com/uk-news/2023/jul/13/boris-johnson-has-forgotten-passcode-for-phone-wanted-by-covid-inquiry