When Law and Politics Collide – Part 2

We look at the latest events concerning the dispute between the UK Covid-19 Inquiry and the Cabinet Office over the former Prime Minister’s WhatsApp messages and diaries.

What’s happened?

Yesterday, 6th July 2023, the High Court ruled against the Cabinet Office on its judicial review of the UK Covid-19 Inquiry’s ruling requiring the department to provide unredacted WhatsApp messages and diaries from the former Prime Minister, Boris Johnson, and other senior political figures from January 2020 over the lifetime of the pandemic.

What’s the history?

Our previous article, “UK Covid-19 Inquiry – When Law and Politics Collide” sets out the full background.

In summary:

• On 21st April 2023, Baroness Heather Hallett, Chair of the UK Covid-19 Inquiry (“the Inquiry”) issued a Section 21 Notice to the Cabinet Office (“the Notice”). The Notice was issued under Section 21(2)(b) of the Inquires Act 2005 (“the Act”).
• The Notice required disclosure of the following to the inquiry:
  
  1. “Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned / used by Henry Cook and which:
  
  a) Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government’s response to Covid-19 (“group messages”); or
  
  b) Were exchanged with any of the individuals listed in Annex B (“individual threads”).
  
  2. Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned / used by the former Prime Minister, The Rt Hon Boris Johnson MP and which:
  
  a) Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government’s response to Covid-19 (“group messages”); or
  
  b) Were exchanged with any of the individuals listed in Annex B (“individual threads”).
  
  3. Unredacted diaries for the former Prime Minister, The Rt Hon Boris Johnson MP covering the period 1 January 2020 to 24 February 2022.”
• The Henry Cook referred to is a former Senior Adviser to the Prime Minister on Covid-19. The individuals listed in Annex B consist of government advisors such as Professor Sir Chris Whitty, Chief Medical Officer, Sir Patrick Vallance, former Chief Scientific Adviser, and various MPs, including the now Prime Minster, The Rt Hon Rishi Sunak MP.
• On 15th May 2023, the Cabinet Office filed an application under Section 21(4) of the Act asking the Chair to revoke the entirety of the Notice. Section 21(4) provides that any claim made by the recipient of a Section 21 Notice that he is unable to comply with, or that it is not reasonable in all the circumstances to require him to comply with, is to be determined by the Chair. The Cabinet Office argued that compliance with the Notice would require it to provide “unambiguously irrelevant material” and that it was therefore outside of the Inquiry’s statutory powers.
• On 22nd May 2023, Baroness Hallett issued a Ruling in respect of the Section 21(4) Application. In it she reiterated that “on the basis of [her] judgement… the entire contents of the specified documents are of potential relevance to the lines of investigation being pursued by the Inquiry”. 
• The Cabinet Office thereafter took the only route of appeal open to it upon disagreeing with a ruling made by the Inquiry – seeking permission for a Judicial Review by the High Court.
• Baroness Hallett’s Ruling has been upheld by the High Court, which issued its judgment yesterday, 6th July 2023.

What does the judgment say?

Essentially, that relevance or otherwise is a matter for the Chair of the Inquiry to determine, and not for the recipient of a Section 21 Notice. Where, however, the recipient of a Section 21 Notice wishes to argue that certain documents caught by it are irrelevant, it is open to him to apply under Section 21(4) to have that determined by the Chair. The Chair should examine the contested documents and return them if they are, in fact, irrelevant. 

In the current dispute, the Cabinet Office argued that the entirety of the Section 21 Notice is invalid because some irrelevant documents are caught by it (it was conceded that a good proportion of the documents requested are relevant). The High Court said that the Section 21 Notice is valid, but that the Cabinet Office could (rather than seeking to have the whole Notice set aside) make an application to the Chair, in respect of the particular documents which it considers irrelevant, to be effectively excused from a requirement to disclose those documents.

The High Court went on to set out that, if such an application is made, the Chair should examine the contested documents, and if she agrees they are obviously irrelevant, she should return them to the Cabinet Office.

What does this mean for the future of the dispute?

The High Court did not determine whether the contested documents are or are not relevant but ruled that this is a matter for Baroness Hallett. It set out a practical way in which relevance can be determined.

It’s almost a certainty that the Cabinet Office will now make a further application under Section 21(4) to the Inquiry Chair in respect of the contested documents. Baroness Hallett will examine the contested documents, and make her own determination about relevance. 

In our view, the High Court has successfully upheld the integrity of the Inquiry proceedings, whilst providing the Cabinet Office with a fair mechanism for challenging the Chair’s initial determination of relevance. It is a judgment which provides all parties with clarity on their next steps.

The full text of the ruling can be found here: Cabinet Office -v- Chair of Covid Inquiry (judiciary.uk).