Divisional Court to hear judicial review challenge on Covid-19 Inquiry powers

The Divisional Court is set to hear a high-profile judicial review today, brought by the Cabinet Office against the Chair of the UK Covid-19 Inquiry (the "Chair" and the "Inquiry"), relating to the Cabinet Office's document production obligations. The Cabinet Office is challenging a notice issued by the Inquiry under section 21 of the Inquiries Act 2005 ("IA"), requiring the Cabinet Office to produce notes made by former Prime Minister Boris Johnson, as well as certain WhatsApp messages on the devices of Mr Johnson and Mr Henry Cook, a former senior adviser to Mr Johnson.

The Cabinet Office sought a "rolled-up" hearing, meaning that the permission and substantive merits stages of the judicial review proceeding will be combined into one. Ahead of the hearing, discussed below are some of the key arguments made by the Cabinet Office and the Inquiry.

Background

The Inquiry was formally established on 28 June 2022, when the Government published the final Terms of Reference ("ToR"). The Inquiry is tasked with examining the UK's Covid-19 response and the pandemic's impact, as well as with identifying lessons to be learnt (see our previous blog post). As with all statutory inquiries operating under the IA, the Inquiry is empowered to compel the production of evidence and documents through notices issued under section 21 IA. Failure to comply with a section 21 IA notice without reasonable excuse is a criminal offence.

The Cabinet Office's challenge concerns a section 21 IA notice issued by the Inquiry, requiring the Cabinet Office to produce:

• diaries and copies of 24 notebooks containing contemporaneous notes of Mr Johnson; and
• WhatsApp messages on the devices of both Mr Johnson and Mr Cook exchanged "[i]n a group chat established, or used for the purpose of communicating about the UK Government's response to Covid-19", or exchanged with individuals listed in an Annex to the notice,

covering the period of 1 January 2020 – 24 February 2022 (the "Notice"). Relevantly, the Chair required disclosure of this material in unredacted form (save only for redactions applied to the notebooks for national security reasons) and did not qualify the request with regard to the subject matter or content of the material.

The chief point in dispute is whether in issuing the Notice, the Chair acted within her power under section 21(2)(b) IA, which states that the Chair may compel a person "to provide any documents in his custody or under his control that relate to a matter in question at the inquiry" (emphasis added).

The Cabinet Office's position

In its Statement of Facts and Grounds, the Cabinet Office argues that section 21 IA only permits the Chair to compel the provision of "documents which are relevant to the inquiry in question". This is said to be the natural meaning of "relate to a matter in question at the inquiry" in section 21(2)(b) and section 5(5) IA, the latter provision stipulating that functions conferred by the IA (such as compulsion powers under section 21 IA) are exercisable only within the Inquiry's ToR. Further, Parliament would not have intended to empower inquiries to compel the production of material irrelevant to their work, particularly where irrelevant material would likely cover personal or sensitive matters. Additionally, the Cabinet Office cautions that permitting the Notice to require the production of documents which are in fact irrelevant risks, places a significant administrative burden on the Inquiry, and could prejudice the protection of sensitive information, including information engaging the Article 8 right to privacy under the European Convention on Human Rights, and the UK General Data Protection Regulation's safeguards. The Cabinet Office also points to the criminal sanction for non-compliance applicable under section 35(1) IA as indicating that a wide reading of section 21 IA is untenable.

As to relevance, the Cabinet Office submits that it must be a question "susceptible of an objective answer on the basis of publicly available materials". The Cabinet Office does, however, accept that "if there is a serious issue as to whether a document is relevant or irrelevant, then it will need to be produced", but contends the Inquiry cannot compel the production of documents (or material therein) that simply may become relevant "by reference to issues that have not yet emerged".

Against this background, the Cabinet Office contends that the Notice is unlawful, given its breadth means "it requires the provision of irrelevant material", including for instance material on "a child's music lesson" or "an entirely unrelated matter of government business". In issuing this Notice unqualified by subject matter or content, the Cabinet Office highlights that the Inquiry has gone far beyond well-established approaches to disclosure in civil proceedings. The Notice, it argues, is therefore simply outwith the powers vested in the Chair – it is purely ultra vires.

Further, the Cabinet Office submits that the Chair's conclusion that all of the material covered by the Notice (such as every single WhatsApp message) is "potentially relevant" was irrational. This is particularly so in circumstances where the Cabinet Office provided on a "without prejudice" basis unredacted material to the Chair to illustrate how "unambiguously irrelevant" the material it proposed to redact was.

The Chair's position

The Chair rejects the Cabinet Office's reading of section 21(2)(b) IA as only covering objectively "relevant" documents in her Detailed Grounds of Defence. Instead, the Chair argues that properly construed, section 21(2)(b) IA permits the Chair to compel production of "documents that the Chair reasonably considers are potentially relevant to her ongoing investigation" (emphasis added).

Central to the Chair's defence is the characterisation of the Inquiry as an inquisitorial proceeding, similar to a coroner's inquest. The Chair argues that the inquisitorial nature of statutory inquiries explains the reference in section 21(2)(b) IA to documents which "relate to" inquiry matters, a formulation framed as wider than the "relevant to" tests common in civil litigation. The Chair contends that a power to compel the production of potentially relevant documents is necessary to enable the Inquiry "properly to pursue lines of investigation and to discharge its statutory functions".

According to the Chair, the Inquiry must be able to "gain a full appraisal of the facts" through a section 21 IA notice, so as to further develop lines of investigation. The Chair considers it entirely appropriate for the Inquiry to be able to reappraise previously collected documents against newer developments. Adopting the Cabinet Office's position on relevance is said to directly undercut the Inquiry's investigative functions and risks obstruction to the Inquiry on the part of those holding documents if they make the judgements on relevance, rather than on the Inquiry itself. Moreover, the Chair contends that the Cabinet Office's position is fundamentally inconsistent. As mentioned above, the Cabinet Office has accepted that where a "serious issue" as to a document's relevance arises, the material will need to be produced. This concession, the Chair contends, renders the Cabinet Office's position untenable: "If such documents are ultimately held to be irrelevant then, on the Cabinet Office’s interpretation, the Chair never had the power to issue the Notice in the first place."

The Chair further contends that sufficient guardrails exist within the IA's framework to prevent prejudice to sensitive information and the unjust application of criminal sanctions.

The Chair goes on to submit that section 21(2)(b) IA as construed, along with what the Chair characterises as the Courts' deferential approach to inquiry decision-making, means that the Inquiry decisions as to the potential relevance of documents should only be reviewed for irrationality. The breadth of the Inquiry's ToR is said to preclude this threshold from being satisfied on the facts of this case.

Conclusion

According to the Solicitor to the Inquiry, this is the "only time" that he has known a recipient of a formal request for documents to decline it because that recipient "seeks to interpose its own view of the potential relevance of the documents requested (absent any legal rules such as legal professional privilege or RIPA issues requiring to be worked through)". However, as the Solicitor to the Inquiry also points out in his witness statement, the Inquiry's protocol requiring disclosure of unredacted documents is consistent with the approach adopted in many other statutory inquiries. The Divisional Court's decision in this case therefore has potentially wide-ranging effects, particularly given the number of different statutory inquiries currently afoot. Core participants in statutory inquiries, as well as other stakeholders, would be well advised to keep abreast of developments in the proceedings.