Taking the Covid Inquiry to Court
Previously:
This post is mostly just a short update on the previous entries listed above. As always if this content is useful to you then paid subscriptions are available and any support at all is appreciated.
Throughout this week the legal and political world has watched closely as the Cabinet Office and the Covid Inquiry had a very public game of chicken. The Inquiry wanted materials to be able to conduct its work and the government refused to comply.
This culminated in a 4pm deadline today that came and went. We have since found out that the government will launch a judicial review to challenge the legal assertions made by the Inquiry.
Those who read my earlier posts might join me in being a little surprised by this decision. Over the past few days, pressure has mounted from all sides for the cabinet office to release the relevant documents. Indeed the failure to do so this evening has prompted uproar from across opposition benches and the general public.
Elkan Abrahamson is the lawyer representing the bereaved families and put it best when he said:
“The Cabinet Office is showing utter disregard for the inquiry in maintaining their belief that they are the higher power and arbiter of what is relevant material and what is not.
“It raises questions about the integrity of the inquiry and how open and transparent it will be if the chair is unable to see all of the material.”
The Cabinet Office might be prepared to stomach this bad press if it thought it had a good chance at winning the substantive case in court but the application for judicial review is not supremely convincing despite originating from the desk of the government’s top lawyer, Sir James Eadie KC.
There will be time to go over the submission in more detail but the thrust of it is summarised in these three points:
“(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).”
Both sides would likely agree on the first point but from then on Eadie goes a little off the rails.
The question of relevance is at the heart of this dispute but the submission deliberately avoids answering who should make the determination of what material is relevant. That is because the Cabinet Office thinks that it should be the ultimate arbiter rather than, say, the actual inquiry investigating the issue.
Eadie cannot say this because it sounds (and is) illogical. Instead it is framed as: ‘any request for documents must be targeted and not so sweeping as to simply be some sort of fishing expedition’. The problem here is that any inquiry will naturally be on the hunt for a wide range of materials during the investigation stage because it needs to draw from the widest pool of evidence in order to be effective. If the second point stands then the government would get to have its cake and eat it: there would be a public inquiry but outcomes would be controlled by the government via the limitation on access to materials.
More importantly than that though, the second point still fails to get to the heart of who should decide which material is relevant. How is the inquiry supposed to be targeted in its approach when it does not already know the potential evidence available?
Finally, Eadie suggests that the approach taken by the Inquiry was irrational. For anyone familiar with public law, that is a big claim and is difficult to prove. The idea behind irrationality is that a decision has to be so far beyond what is reasonable that no objective person could have arrived at it. Does the request from Baroness Hallett really defy coherence in such a way. If the responses across politics and media are to be believed then the average person on the street probably would agree that it makes sense for her to have access to all of the materials and that the original request was in no way outrageous.
Where does this leave us?
The court battle will take place in the High Court. It is possible that the side which loses the case might choose not to appeal. What is more likely is an appeal that leapfrogs its way to the Supreme Court and, on an expedited timescale, the Justices are once again asked to determine a question of significant constitutional and public importance.
In the meantime Boris Johnson is left in an interesting position.
He has already said that he would be happy to hand over all of the materials that he is able to in an unredacted form and there is nothing that the Cabinet Office can do to stop him. That won’t affect the case but it will help the Covid Inquiry.
It is hard to believe the former prime minister will pass up the opportunity to play the hero.