DISPUTE RESOLUTION AND COMMERCIAL LITIGATION

Is the Government covering up covid?

Disclosure and the Covid Inquiry – a case for common sense or a case for Judicial Review?

The Hallett Inquiry has a wide brief. Set up in the wake of the UK Government’s handling of the Covid emergency, the Government came under pressure to set up a Public Inquiry into the way in which the pandemic was handled. Baroness Hallett was appointed in December 2021.

The terms of reference relate to

  • UK preparedness
  • the public health response
  • the response in the health and care sector
  • UK economic response

(Source UK Cabinet Office https://www.gov.uk/government/publications/uk-covid-19-inquiry-terms-of-reference/uk-covid-19-inquiry-terms-of-reference)

A disclosure argument has arisen between Baroness Hallett and the Cabinet office. There is no dispute, I think that both sides would agree that the Inquiry is entitled to see all relevant material.

The question is: who decides what is relevant?

Hallett’s position is that as Chair, all material, relevant or not, should be disclosed to her. It is then for her to decide what is and what is not relevant to her Inquiry. The Cabinet Office says that material which is manifestly irrelevant should not be disclosed. Government, the Cabinet Office states, must have privacy when discussing policy issues or policy discussion will be hobbled with policy makers having a weather eye to embarrassing disclosure.

Matters reached a head at 5.15pm on 01.06.2023 with the Cabinet Office deciding that the question of who decides what is relevant should be looked at by a Judge under the Judicial Review procedure. Can the Cabinet Office be certain that embarrassing but irrelevant material will not find its way into the public domain? Do officials give up all right to a private life by virtue of their appointment to high office?

The Inquiries Act 2005 section 21 provides

21 Powers of chairman to require production of evidence etc

(1) The chairman of an inquiry may by notice require a person to attend at a time and place stated in the notice –

(a) to give evidence;

(b )to produce any documents in his custody or under his control that relate to a matter in question at the inquiry;

(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.

(2) The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable –

(a) to provide evidence to the inquiry panel in the form of a written statement;

(b) to provide any documents in his custody or under his control that relate to a matter in question at the inquiry;

(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.

My own view is that this argument could have been avoided. There is ample precedent here. The Inquiries set up in the wake of the Falklands War and the failures in Intelligence leading up to the war in Iraq (GW2) asked the civil servants dealing with the disclosure to Certify that all relevant documentation had been disclosed. Sir Robin Butler, speaking on BBCs World at One 01.06.2023 and who conducted the latter Inquiry, said the Certification system worked well.

However, it seems the parties to the current dispute have dug themselves into position.

For my part, I think the powers given to an Inquiry under section 21 are broad enough to support Hallett’s position in law. The government may be forced to give up all of the papers, relevant or not. But I criticise Hallett for getting into this position.

First, there is precedent for this situation. Second, high officials must have some form of privacy. Third, and perhaps most importantly, there must be freedom at the heart of government – more so in an emergency – for high officials to think and consider the offensive, the callous and the unthinkable, if only then to dismiss these ideas. Finally, implicit in Hallett’s position is that civil servants in the heart of government cannot and should not be trusted to Certify what is and what is not manifestly irrelevant. The system of government in this country rests on the civil service. To attack (albeit implicitly) their integrity is not helpful.

About the authors


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Jonathan Compton

Partner

Specialist in commercial disputes, banking and finance, regulatory and anti-trust/competition law.

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