Why government is wrong on the Covid inquiry row

The Inquiries Act comes with important legal powers

One of the most important distinguishing features of a statutory public inquiry is the immense power it has. Under section 21 of the 2005 Inquiries Act, the chair has the power to compel the production of written evidence and for people to appear as witnesses before it. 

With just a few exceptions, the failure to comply with such requests is a criminal offence punishable with anything from a fine to a prison sentence. ⁹ Cowie G, Statutory public inquiries: the Inquiries Act 2005, House of Commons Library, 28 November 2022, https://researchbriefings.files.parliament.uk/documents/SN06410/SN06410.pdf

These powers are precisely why statutory inquiries are the gold standard for investigations of this kind: they bring with them the power to consider the material needed to adequately discharge the terms of reference of an inquiry. This is critically important for public trust in the independence and legitimacy of the Covid inquiry.

It is for the inquiry chair to decide what is relevant 

One argument at the heart of this row is about ‘relevance’ – specifically, who decides what material is relevant to the Covid inquiry. Government lawyers have argued it is up to them to decide if material is relevant – and that it is therefore their right to exclude anything that is “unambiguously irrelevant”, including some personal diary extracts and WhatsApp messages from Boris Johnson and other senior government figures. The Inquiries Act provides no such get out clause, as others including David Allen Green have written. ¹⁰ Allen Green D, “Not a promising start” – a close read of the Covid Inquiry ruling against the Cabinet Office, and why it may be very significant, The Law and Policy Blog, 24 May 2023, https://davidallengreen.com/2023/05/not-a-promising-start-a-close-read-of-the-covid-inquiry-ruling-against-the-cabinet-office-and-why-it-may-be-very-…

If anything, the opposite is true: in general, and particularly in the case of the Covid inquiry, it must be for the inquiry chair to determine what is relevant. The Inquiries Act gives an inquiry chair the right to request information which “relates” to the matters in question. And the terms of reference of the Covid inquiry – agreed with government – are very broad, clearly giving Baroness Hallett the ability to decide that diary extracts and other personal messages might be relevant to her considerations. 

Government has argued that handing over some of this material without redactions could set a problematic precedent – damaging its ability to have private policy discussions without fear of disclosure. But the more dangerous precedent is that document-holders and potential witnesses get to decide what is relevant to an inquiry, rather than the independent inquiry chair. This argument could be rolled out again and again over the coming months and years by other organisations and individuals, stymying the inquiry’s progress. 

Collective responsibility and poor WhatsApp records are not reasons to deny information to the Covid inquiry

The government has also argued that releasing Johnson’s WhatsApp messages and other material without redactions could undermine collective cabinet responsibility. This constitutional convention states that ministers should be able to have free and frank discussions prior to coming to a collective decision, and that these discussions should remain confidential. But this is exactly what the inquiry has been set up to examine. It has to be able to look at the advice given, the discussions had and the decisions made. It is doing so only on matters that relate to the pandemic, but, again, the decision on what is relevant is something the inquiry will ultimately have to judge. 

What seems to lie behind this defence is not Johnson’s WhatsApp messages or diaries, but whether it sets a precedent that all other ministers will have to hand over their WhatsApp messages and other communications and, presumably, that this might reveal other politically sensitive details. But this is what an inquiry is for. Baroness Hallett is not just looking into cabinet meetings and minutes, but the whole of how government prepared for and handled the Covid pandemic. That may mean judging how political factors or personal arguments played a role, as well as how WhatsApp functioned as a tool for decision making. Hallett would undermine her own inquiry if material leaked or she used politically embarrassing material that did not seem relevant to the pandemic, and there are safeguards to protect individual privacy. So all the government is achieving is creating the impression that it has something to hide. 

The fact that this row has happened partly because of a request for Boris Johnson’s WhatsApp conversations shows just how important the messaging app is to the way government works nowadays. Given its importance, information held in WhatsApp messages must be treated in the same way as any other government information. And Cabinet Office arguments over who has access to particular messages would have been avoided if ministers and officials did not use personal phones to discuss government business. 

What might happen next 

On Thursday, we will find out what happens next in this saga. It is possible that government will change course and comply with the inquiry’s request for information. It is also possible that it will seek judicial review of whether Baroness Hallett has the right to request these materials at all – though government would almost certainly lose such a challenge. Or it could be that the argument is, for the time being, side-stepped if Johnson himself hands over his own records. 

But the longer this argument goes on, the greater the risk that government undermines the authority of the Covid inquiry. Baroness Hallett must be free to consider the evidence and information she considers relevant to her inquiry – any perception that she is being thwarted will be damaging to all involved and betrays the promises for “rigour” and “candour” ¹² McGuinness A, COVID-19: Boris Johnson announces independent public inquiry into government handling of pandemic to begin in spring 2022, Sky News, 12 May 2021, https://news.sky.com/story/covid-19-pm-announces-public-inquiry-into-government-handling-of-pandemic-to-begin-in-spring-2022-12304332 that were made when the inquiry was first established.