Cabinet Office v Chair of Covid Inquiry
Court affirms wide latitude afforded to public inquiries to 'fish' for potentially relevant documents
In a judgment handed down on 6 July 2023, the High Court dismissed the Cabinet Office’s claim for judicial review of the decision by the Chair of the UK-Covid 19 Inquiry (the “Inquiry”), Baroness Hallett (the “Chair”), to require the Government to provide the Inquiry with unredacted copies of WhatsApp messages exchanged between Boris Johnson and various advisors and senior government ministers in the period leading up to and during the Covid-19 public health emergency. The decision comes after months of considerable public interest in the Cabinet Office’s attempts to resist the provision of the requested material.
Below, we set out the background to this highly unusual case and its implications.
At the heart of the dispute is a notice given by the Chair on 28 April 2023 under section 21 of the Inquiries Act 2005 (the “Notice”), which requires the Cabinet Office to provide the Inquiry with unredacted copies of: (i) WhatsApp messages exchanged between Boris Johnson, his advisor Henry Cook, and a list of various other senior government ministers, civil servants and advisors; (ii) Mr Johnson’s diaries; and (iii) Mr Johnson’s notebooks, for the period between 1 January 2020 and 24 February 2022 (together, the “Requested Material”). The Notice said that the Requested Material was “potentially relevant to the lines of investigation being pursued by the Inquiry”. The Notice is a coercive measure: failure to comply, without a reasonable excuse, is a criminal offence under section 35(1) of the Inquiries Act.
On 15 May 2023, the Cabinet Office responded with an application pursuant to section 21(4) of the Inquiries Act asking the Chair to revoke the Notice on the basis that the Inquiry has no jurisdiction to use its compulsory powers to demand material that is “unambiguously irrelevant” to its work, especially since that material could contain information that is “inherently sensitive…and/or personal” (the “Application”).
In a ruling on 22 May 2023, the Chair declined to revoke the Notice on the basis that: (i) the Requested Material contained information potentially relevant to the Inquiry; and (ii) there was an expectation by the public that all relevant documents are disclosed for use in the Inquiry (the “Ruling”). The Ruling highlighted that the Application was the inappropriate forum to raise jurisdictional concerns – such issues ought to be raised via judicial review.
The Cabinet Office applied for judicial review of the Chair’s Notice and Ruling on 1 June 2023. As many commentators have noted, it is highly unusual (albeit not unprecedented) for the Government to be a Claimant in a judicial review.
Given the level of public interest and the importance of a prompt resolution, the claim was heard on 30 June 2023 by a Divisional Court of two judges with public inquiry expertise on an expedited basis. The court was a “rolled up” hearing, whereby the Court considers both permission and the substantive claim simultaneously.
It was common ground at the hearing that two thirds of the WhatsApp messages captured by the Notice relate to a matter in question at the Inquiry. The focus of the dispute was, therefore, the fact that the Notice yielded some WhatsApp messages which do not relate to a matter in question.
At the hearing, Sir James Eadie KC argued on behalf of the Cabinet Office that: (i) 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; (ii) the Notice therefore ought to have been limited by reference to relevance (i.e. requesting disclosure only of WhatsApps specifically relating to a matter in question at the Inquiry, thus enabling the Cabinet Office to redact irrelevant parts of the messaging threads); and (iii) the Chair’s decision (in both the Notice and the Ruling) that the Requested Material was, or might be, relevant to the Inquiry’s work, was irrational, given the breadth of the Notice.
In response, Hugo Keith KC argued on behalf of the Chair that: (i) section 21 empowers the Chair to ask for all documents that she reasonably considers are potentially relevant to her ongoing investigation; (ii) the Inquiry’s Terms of Reference are extremely broad and the Chair was entitled to take the view that the Requested Material was potentially relevant to the Inquiry’s line of investigations; and (iii) the Chair’s decisions that the Requested Material was potentially relevant were “unimpeachable”.
Lord Pannick KC made brief oral submissions on behalf of Boris Johnson, an Interested Party, in support of the Chair’s position, noting that the appropriate test is whether the material in question “may cast light on matters falling within the Terms of Reference”.
The High Court’s Decision
The High Court granted permission for the judicial review to proceed but dismissed the substantive claim. The Cabinet Office has confirmed that it will not appeal the decision.
The High Court held that the Notice was valid, notwithstanding that it would yield some irrelevant documents. In reaching this conclusion, the Court emphasised that inquiries are convened to address matters of public concern, and their task is to ensure that facts are fully and fairly investigated. They are, therefore, to be afforded considerable latitude (not provided to parties in civil proceedings) 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”.
In reaching this conclusion, the High Court also noted that the Inquiries Act recognises that irrelevant documents might be captured by a section 21 notice and provides a process for resolving this under section 21(4). Under section 21(4), a party may apply to the Chair saying that it is unreasonable to be required to produce documents which do not relate to a matter in question at the inquiry. The Chair may then examine the documents on a “de bene esse” basis (i.e. on a provisional basis without determining admissibility), and rule on the claim. If the Chair rules that a document does relate to a matter in question and the party disagrees, then the party can refuse to produce the document (albeit at the risk of criminal proceedings under section 35) and invite the Chair to certify that the question be determined by the High Court under section 36. In this case, the High Court found that this statutory scheme is at odds with the Cabinet Office’s contention that obtaining one “obviously irrelevant” document renders the Notice unlawful.
The High Court also held that the Chair did not act irrationally in issuing the Notice. The Court noted that the fact that it was common ground that two thirds of the WhatApp messages relate to a matter in question at the Inquiry part proves that the Chair acted rationally in requesting them.
Whilst the High Court emphasised the considerable latitude that will be afforded to Inquiries in pursuing lines of inquiry, it also emphasised that the powers of the inquiry are “not without limits”. The powers of an inquiry can only be carried out within the Terms of Reference. The Covid-19 Inquiry’s Terms of Reference were established following a public consultation and are, as the High Court noted, “very wide”. There is, of course, therefore a risk that the Government may look to set narrower terms of reference for inquiries into Government action in future, though that could itself trigger legal challenges, as was the case in the Angiolini Inquiry. In the present climate, we can reasonably expect to see further political and legal debate about the nature and scope of public inquiries.
 Based on the Privy Council’s decision in Douglas and Others v. The Right Honourable Sir Lynden Oscar Pindling (Bahamas)  UKPC 8, 20.