Government loses judicial review on Covid-19 Inquiry WhatsApps

In its judgment of 6 July 2023, the High Court (i) granted “permission” for the government’s claim (that is, it said it had met the threshold of an arguable case) but (ii) dismissed the substantive claim for judicial review.

What was the basis of the argument?

The argument was about the scope of the inquiry chair’s powers under the Inquiries Act 2005 to require the disclosure of documents. The chair, Baroness Hallett, had sought a wide range of material, including WhatsApps, which she considered to be “potentially relevant to the lines of investigation being pursued by [the inquiry]”. The Cabinet Office argued that the documents contained “unambiguously irrelevant material” and that the chair had no power to require disclosure of such material. Johnson himself, through his counsel Lord Pannick KC, intervened in the case to support the position of the chair of the inquiry.

The court held that the notice issued by the inquiry “was served to require the production of documents that ‘relate to a matter in question at the inquiry’”. Some of the material was undoubtedly about the government’s response to the Covid pandemic. The fact that the notice might also yield some irrelevant documents did not mean that the notice was invalid. Under the 2005 Act inquiries are to be afforded latitude to “fish” for documents, that is “to make informed but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry”.

In any case, section 21 of the Act already contains a mechanism by which a party can make an application to the chair of an inquiry saying that “it is not reasonable in all the circumstances to require him to comply” with a notice. That enables the government to argue that a particular item of information (such a specific WhatsApp, or part of one) does not in fact “relate to a matter in question at the inquiry”. The court said the existence of that mechanism was inconsistent with the Cabinet Office’s contention that a notice seeking any “obviously irrelevant” material must be unlawful.

Is the outcome a surprise?

In short, no. Most commentators (including me) thought the government’s challenge would fail, given the scheme of the Inquiries Act, the width of the powers it gives to the chair of an inquiry, and the apparently well-reasoned nature of Baroness Hallett’s request.

What happens now?

The government has said it accepts the judgment and will not appeal. The Cabinet Office has described the judgment as “sensible”, though that may be a bit of face-saving: it has undoubtedly lost the judicial review. However the mechanism described above does still allow the government to make the case that particular pieces of information are irrelevant. The decision on such an application will be one for the chair. It is likely that she will need to see the material itself in order to make that decision. But it may well be that she will agree that some information is indeed irrelevant, in which case she can be expected to return it to the government, and it will not be published or have any bearing on her eventual report. The Cabinet Office has said it “will now work with the inquiry team on the practical arrangements”.

In theory there could be a further row. If the government continues to disagree with the chair’s decision that particular material should be disclosed, it could refuse to produce the document (albeit at the risk of criminal proceedings under section 35 of the Act) and invite the chair to refer the matter to the court under section 36. That would involve another contested court case. I suspect the government will be anxious to avoid any such further row if it possibly can.