DISPUTE RESOLTUION AND COMMERCIAL LITIGATION

The Government is both right to challenge the Covid Inquiry and has a duty to do so

The facts of the case in brief: Baroness Hallett has asked the Government to disclose all messages between officials and ministers relating to the Covid Inquiry. The Cabinet Office is clear that it will produce all relevant material. It is the Cabinet Office’s case that it is they who should decide what to disclose on the test of whether a given document is ‘manifestly irrelevant’. It is the Inquiry’s case that this decision lies with them.

The Inquiry was set up in late 2021. The remit of the Inquiry is to examine UK preparedness and response to the pandemic in economic and health terms.

The Inquiry is set up under the Inquiries Act 2005. The Act empowers the Inquiry to compel the production of evidence and documents under section 21.

21 Powers of chairman to require production of evidence etc

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

(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.

Were it the case that the powers of the Inquiry were limited to (2) (b) above, then the Government would be successful: The Inquiry cannot rely on (2) (b) to produce material that does NOT relate to a matter in question.

Where the government will lose is in relation to the broader powers of the inquiry under (2) (c) above. Here it is expressly the case that the Inquiry can order the production of any ‘other’ thing it wants. The only test is whether that thing is in the custody or control of the party ordered to produce it.
So, I think the government will lose and I think it knows it.

So why take the matter to court by way of Judicial Review, particularly given the fact that Mr Johnson has consented to the release of his diaries and phone (the cause of all this fuss)?

Because there are two conflicting public interest arguments here: the Public must have faith in the Inquiry, the government must be free to discuss matters without fear of disclosure. If it were the case that ministers and officials could not be sure that their policy discussions are confidential, then discussion in government will be hobbled to the possible detriment to us all.

Not only do I argue that the government’s case is legitimate, I consider that it is bound to take the case in the public interest. The court can decide and lay down guidelines to be followed when two sets of public interests come so clearly into conflict and can do so in a court of law, disinterested in day-to-day politics.

Any party in a legal process has a perfect right to approach the court for guidance and directions. Where the public interest is at stake, this right becomes a duty.

Whilst it is acknowledged that there is high emotion in relation to how the Government planned for and reacted to the Pandemic, this is no argument to abandon the case. To those who are personally affected and who condemn the decision of the Cabinet Office to seek Judicial Review I would gently but firmly disagree. Two reasonable parties to a legal process can disagree in good faith. Where this happens, it is the role of the court to settle the matter and offer guidance and directions to the parties. In this way decisions are reached, and precedents set to which future generations may have recourse.  The fact that there exists such high emotion adds only strength to the argument that the court room is the place to settle the disputes that arise in our system of government.

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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