Covid-19 Inquiry: Judicial Review

Tuesday 6th June 2023 Lords Chamber

Statement

20:28

[The Deputy Speaker (Baroness Bull) (CB)]

My Lords, the Statement on which we are about to take questions concerns matters which are currently before the courts. The Speaker granted a waiver of the sub judice rule in the House of Commons yesterday to allow these matters to be raised on the grounds of their national importance. The Lord Speaker has also agreed to waive this House’s sub judice resolution, both during proceedings this evening and on an ongoing basis.

The following Statement was made in the House of Commons on Monday 5 June.

“I am grateful for permission to make a Statement on the Government’s decision to seek a judicial review on a specific point of law relating to the public inquiry on the Covid pandemic. The whole House will recognise that, on any issue that is before the courts, a Minister needs to act and speak with extreme sensitivity. We fully respect the difficult role that judges need to perform, and I appreciate that the conventions of this place are designed to ensure that we do not make their role—the sober and detailed consideration of facts of law by those qualified to do that—any harder. I am sure that the House will respect the fact that, for those reasons, it would be inappropriate for me to debate the fine details of this case.

Notwithstanding that, we felt that there was very real public interest in the broader issue of why the Government would take the unusual step of asking for a judicial review on a point of technical difference between the Government and an inquiry that the Government have established. That being the case, we felt, as ever, that the matter should be raised in this House.

The Government fully support the vital work of the inquiry, which seeks to establish the facts, and the lessons to be learned from the response to the pandemic. It is right that the inquiry on Covid-19 be comprehensive and rigorous. It is being chaired by Baroness Hallett, an eminent former Court of Appeal judge. In this dispute, the guidance of the courts is sought on a narrow and technical point of law. It does not touch on the Government’s confidence in the inquiry. Nor does it in any way affect the Government’s intention to continue full co-operation with the inquiry. To date, the Cabinet Office alone has submitted 55,000 documents to the inquiry. We will continue to provide any and all Covid-related materials requested.

We are grateful for the work being undertaken by the inquiry chair and her team. The pandemic was one of the most difficult times for our country in living memory—so many people lost so much. The inquiry’s task is challenging. It must have the support of us all in conducting its work, and in bringing forward its conclusions in a timely way. The core point of principle that is raised is whether there are limits to the power of the inquiry to compel information and documents to be produced.

Specifically, the question raised by the compulsory notice under the Inquiries Act 2005 that was served on the Cabinet Office is whether the inquiry has the power to compel production of documents and messages that are unambiguously irrelevant to the inquiry’s work, including personal communications and matters unconnected to the Government’s handling of Covid. The notice received is bound to include a range of material of that nature. It covered a two-year period and a range of documents, including WhatsApp messages relating to my right honourable friend the Member for Uxbridge and South Ruislip, Boris Johnson, and a former special adviser.

I reiterate that all material that is relevant to the inquiry’s work has been and will be provided to the inquiry; likewise, material about which there might be real questions about its relevance to that work. There is no question but that all internal discussions on Covid, in any form, requested by the inquiry will be made transparently available to it. What has been redacted, and so not provided in response to the notice, is material that the Cabinet Office considers to be clearly and unambiguously irrelevant to that work. That material includes, for example, communications about purely personal matters and about other aspects of the Government’s policy and work which have nothing to do with Covid. It is that material, and that material alone, that is subject to judicial review. Honourable Members wanting to see more detail of our concerns may be interested in our letter to the inquiry, sent last Thursday, which is available on the Government’s website and a copy of which I will deposit in the House of Commons Library.

As in any such dispute, there are two sides to this debate. Baroness Hallett, as I have said, is a highly respected senior judge and inquiry chair in whom the Government have great confidence. The inquiry has made relevant statements regarding the Government’s position on its website, to which I draw the House’s intention. The inquiry will no doubt be making further statements. Above all, as I understand it, the inquiry believes that it should be for the inquiry alone to judge the relevance of the material requested. We respect that position and, as I have indicated, the Cabinet Office has provided material about which there might be a dispute.

Where we differ with the inquiry is only in relation to material that is considered to be clearly and unambiguously irrelevant, and that is considered to be so after careful checking. This is a genuine and sincere difference of opinion on which we are seeking the guidance of the courts. I do, however, want to assure the House that the Government have explored with the inquiry ways to bridge the gap between those sincerely held but differing views, and we will continue to do so. We appreciate the patience and good will shown by the inquiry as we have sought to identify a mutually acceptable solution.

We have also sought to assure the inquiry on the nature of the redactions of non-relevant material from the information requested in the Section 21 notice and how those would operate. The process deployed to ascertain and redact unambiguously irrelevant material from that information is as follows. Witnesses are required to identify any material that may contain potentially irrelevant information to the inquiry, with guidance from the counsel team supporting them. That is then reviewed by the counsel team, who identify any material that is unambiguously irrelevant. The counsel team discusses it with the witness in case there is any context or detail of which they may not be aware. The review by the counsel team includes the assessment of a King’s Counsel instructed by the Cabinet Office. No decision to redact material as unambiguously irrelevant has been or will be taken by a witness acting alone.

These redactions will all be kept under review such that if the scope of the chair’s inquiry changes, she will be able to receive the material that becomes potentially relevant. I would like to reiterate that this is a matter of legal principle that will have an impact on this Government and all future Governments. This is absolutely not related to one individual’s personal information.

In conclusion, I would like to again issue my thanks to the inquiry chair and her team for the important work they are undertaking. The Government have only embarked on this course after serious consideration. It is with regret that we felt the judicial review had to be brought forward. We are very aware that it is sometimes in the nature of government that difficult decisions have to be taken, knowing that in the short term they may of course be criticised or misinterpreted, but which we believe are important for the country in the longer term. Whereas it is entirely right that any material in any way related to Covid is available to the inquiry, we believe there is value to challenge and debate inside government being unclouded by the knowledge that other discussions could be disclosed regardless of their relevance to any future inquiry. As such, we believe this request for guidance is necessary.

Finally, I would like to make it absolutely clear to all those directly affected and bereaved by Covid that the Government will do absolutely nothing that we believe impedes the vital work of the inquiry, to give them the answers they deserve and that the country needs to ensure that we learn the lessons of Covid. I commend the Statement to the House.”

20:29

[Baroness Smith of Basildon (Lab)]

My Lords, before I start, I will just emphasise the point made by the noble Lord that it is unusual when business says

“at a convenient time after 7.30 pm”

to be starting closer to 8.30 pm. I wondered whether the Government were trying to delay it because the Minister did not want to answer questions.

Where I suspect the Government and I would agree is that Ministers, politicians and officials need private time and space to explore and discuss issues as they develop policy, but that is not what the Government’s legal action in this Statement is about. There were basically two reasons why the Government launched this inquiry into the handling of the Covid pandemic. The first was to learn lessons from what was done well, what went wrong and what changes could be made for us to be better prepared and to better respond to such events in future. For there to be trust in government for any similar event in future, we must ensure we are able to respond effectively.

Secondly, the inquiry was about trust, responsibility and accountability. Many questions have been raised since; for example, about preparedness beforehand, the supply and purchase of PPE and the disputes the Government had about scientific advice, and the view from the Government was that an independent, judge-led inquiry was the most appropriate way forward. To this end, the Government chose a highly regarded former judge, the noble and learned Baroness, Lady Hallett. I am giving some background on this because in your Lordships’ House we do not now benefit from hearing a Minister read a Statement out, so it is somewhat awkward for those listening to know what is going on. Normally, I would just have questions, but I think it is important to set on record some of the scene, which should be the Government’s job.

The Government chose a highly respected former judge, the noble and learned Baroness, Lady Hallett, but what appears to be the case—I would be grateful for the Minister’s comments on this—is that the terms of reference for that inquiry and the timescale in which it was to be expedited were not fully formed and there is now a dispute between the Government and the inquiry. We now have a rather embarrassing position where the Government are seeking a judicial review to, in their own words, test

“the core point of principle”

of who decides whether there are limits on information that an inquiry can request. The Government’s argument is that this applies only to documents that are “unambiguously irrelevant” and that this is a test case. It has been admitted by a Minister that the Government expect to lose the case but, apparently, even then, it is important to test the point of principle in the court with the taxpayer footing in Bill.

I have a number of questions for the Minister. What discussions were there between the Government and government representatives and the inquiry prior to the application for judicial review? In other words, was there any attempt to resolve this more sensibly? Can she confirm that the inquiry is being conducted under the Inquiries Act 2005? Is she confident that a judicial review is compliant with the entirety of that legislation? If so, on what grounds are the Government seeking judicial review? If, as the Government have previously confirmed, there are well over 20 million documents that could be relevant yet so far only 55,000 have been provided to the inquiry, have they made any assessment, should they be successful in the case, of the timescale for assessing those documents—whether or not the Government consider they are relevant to the inquiry—and what are the criteria for those documents being assessed as relevant? Was that ever discussed prior to the judicial review with the noble and learned Baroness, Lady Hallett?

I think the important question is whether it is true that the Government have told the former Prime Minister, Boris Johnson, that if he rocks the boat on this inquiry, they will stop paying his legal costs. The Minister huffs and puffs at me, but this has been raised in the press—it has been discussed quite openly—and I think it would be helpful in your Lordships’ House to get an accurate assessment of whether that has been the case or has been discussed, and whether there has been any discussion at government level of that kind of tit-for-tat approach.

As regards the type of documents and information requested, can the Minister say how many of those communications were by WhatsApp? The reason I raise that is that we have discussed this WhatsApp issue before, and there are real concerns that Ministers have been far too casual about communications through private messages and social media platforms, mixing up what is appropriate government business with what is just gossip and chit-chat. I can understand that Ministers may be concerned about the public reaction to the banality of some of those messages, as the Hancock exposé revealed, but the Minister has to understand that this just fuels suspicion that this judicial review is more about protecting reputations than learning the lessons of what happened during the pandemic.

I hope the Minister understands that there are real fears that, by their action, the Government could undermine the very purpose of the inquiry. If it is felt that information has been withheld or suppressed, then one of the key objectives—public trust—will have been undermined, with damaging consequences not just for our politics but for confidence in any measures that may be required if and when we face another major public health event. Other countries have already reported on their investigations; all these delays mean there is a danger that by the time these issues are resolved, it will be too late for lessons to be learned.

So many who have lost loved ones or are still living with the consequences of Covid deserve to know the truth. They also deserve to be reassured that we understand where the Government’s successes were, where the failures were, and that lessons have been learned. I hope the Minister will be able to give some answers today to reassure the House that that is the Government’s ambition too, because that aim is being undermined by this legal action.

[Lord Allan of Hallam (LD)]

My Lords, what a dog’s breakfast this is when a Government who spend so much time complaining about other people using judicial reviews stand before us trying to justify their decision to use the same legal process to prevent an inquiry that they set up having access to communications sent by members of that very same Government on matters of significant public interest.

The Government’s case appears to be that full disclosure would be unfair because their communications are all over the place, mixing business and pleasure with God knows what in a soup of uncontrolled WhatsApping, as the noble Baroness, Lady Smith of Basildon, has already flagged. Yet this is a problem entirely of their own making. While the pandemic was not something that anyone could have foreseen, it was entirely predictable that the way this Government have been working would lead to problems. If this were not happening with the Covid inquiry, we would have arrived here sooner or later with some other investigation into government decision-making where disclosure of Ministers’ messages was necessary.

Does the Minister accept that this situation could have been avoided if her Government had shown more discipline in managing government communications from the outset? Does she agree that it was not inevitable that we would end up in this mess—that this could have been avoided through having clear rules such as using different devices for home and work communications, as is common in many other sectors? Can she indicate whether all Ministers are now following improved protocols so that we will not repeatedly fall into this same situation, as there are surely other areas of government policy that will be challenged either in the courts or through future public inquiries?

I am sure that all of us find it hard to keep track of which communications channels we use for which purposes, and it can of course be convenient to mix them up, but the business of government is special and communications about decisions by government that affect millions of people have a particular importance. This importance means that Ministers of the Crown and those working for them should be held to a higher standard, and they have more resources available than most of us to help them meet those high standards.

The fact that this court case is happening is not—however much the Government protest—a way of protecting all Governments from overreach, as not all Governments would have allowed decisions to be made in the way that this one has done. Concerns about this Government acting as a chumocracy, mixing public business with the private interests of their friends and supporters, run much more widely than the supply of PPE during the pandemic.

The public interest is not now served by the Government throwing up legal barriers to those we have tasked with investigating, thoroughly and impartially, how decisions were made on matters of massive public interest. The Minister has a job to do and she has been sent here to defend her Government’s latest actions, but I hope that she will at least acknowledge that this is not a bolt from the blue but an inevitable consequence of how her colleagues have been working for far too long.

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

I start by agreeing with the noble Baroness, Lady Smith of Basildon, that it is difficult to answer questions when we have not had the benefit of the Statement. It was a long Statement in the other place.

[Baroness Smith of Basildon (Lab)]

The Minister misunderstands. It is difficult to ask the questions, but it should be easy for her to answer them.

[Baroness Neville-Rolfe (Con)]

It is helpful to set things out, and I thank her for trying to do that.

I want to respond to the point about our intentions. The noble Baroness described the inquiry and how it was set up. The Government wholeheartedly support and endorse this important inquiry as it seeks to establish the facts and lessons to be learned from the response to the pandemic. I agree that the noble and learned Baroness, Lady Hallett, the very distinguished, eminent former Court of Appeal judge who is chairing the inquiry, brings invaluable experience, and we are very grateful to her and the team.

As noble Lords know, the Cabinet Office is challenging the Section 21 notice issued by the chair, fundamentally as a matter of principle. We are protecting the proper conduct of government for the longer term. Indeed, we remain hopeful and willing to agree the best way forward with the inquiry.

The noble Baroness asked about discussions between the Government and the inquiry prior to the application for review. We have been working for months and making documents available. That has been done by the special team for the inquiry in the Cabinet Office. Attempts have been made to agree and, as the noble Baroness said, we are conducting the inquiry under the 2005 Act. The grounds of our review have been set out clearly in a statement of case and grounds. That has been made available and is on GOV.UK so that people can understand what our case is about.

Obviously it is with regret that we felt that judicial review had to be brought. I assure the House that it has been done in relation to unambiguously irrelevant material—I cannot emphasise that more—and as a matter of principle. The Government are not trying to suppress anything. We are happy to provide any potentially relevant material that the inquiry requests, but not unambiguously irrelevant material, which is an unwarranted intrusion into other aspects of the Government’s work. That explains the need for what is, in a sense, a narrow and technical judicial review. It does not touch at all on the Government’s confidence in the inquiry.

The noble Lord, Lord Allan, asked about the JR and felt that people would not understand why we were doing it. The truth is that the Government embarked on this course only after very serious consideration. It is with regret that we had to bring the judicial review forward. We are very aware—I am very aware of this—that it is sometimes in the nature of government that difficult decisions have to be taken, knowing that in the short term there may be criticism, but we believe it is important for the country in the longer term to ensure exactly the arrangements for disclosure. However, I cannot emphasise more strongly that if information relates to Covid then it will be made available to the inquiry.

It is true that there is a lot of documentation, along with WhatsApps, calendars and so on, to be gone through. That is why the Cabinet Office and other departments are doing everything they can to make information available to the inquiry in a usable and sensible form. I emphasise that, on the whole, relations with the inquiry have been harmonious and co-operative. What the inquiry does and decides is a matter for it, but we have done our very best to continue with that and make sure that things run smoothly.

As the noble Lord, Lord Allan, said, some inquiries in other countries have already concluded. He probably mentioned Sweden, which I think had a less wide-ranging inquiry. There is much wishing here for the inquiry to be very wide-ranging and to look at all the different issues. That is why the noble and learned Baroness, Lady Hallett, has set out the procedure for the inquiry in the way that she has, with modules looking at different things. We are assisting her. All government Ministers—those being supported by the Government—are co-operating with the inquiry.

20:45

[Baroness Chakrabarti (Lab)]

My Lords, on the anniversary of D-day, I remind noble Lords that during the pandemic this country alone lost twice as many civilians as we lost during World War II. Therefore it was quite right that the Government decided, like many other countries, to hold some kind of independent inquiry into the handling of something that was difficult for everyone—no question about that. I hope the Minister knows my respect for her; she knows that we share a characteristic of being former civil servants. I declare a further interest in being a former inquiry member, having served on Lord Leveson’s inquiry, so I hope I have a number of insights into this kind of process.

I am concerned that sometimes Governments hold inquiries, important though they are, to kick important issues into the long grass. If I am not right about that, I am sure that a lot of people in the country share a potential cynicism about the inquiries held. I think the noble Lord, Lord Allan, suggested that it is like saying, “We don’t believe in legal aid or in judicial review, but we believe in judicial inquiries whenever there is a political crisis”. I have concerns about that.

In particular, however, I ask the Minister: how is it ethically or publicly appropriate to constitute your own independent judicial inquiry into a matter of such public concern and not to trust the judge—a Member of this House—to decide what is relevant and not relevant, and what is sensitive and not sensitive? If there are things that are sensitive, how is it not appropriate to put in the disclosure with suggested redactions and leave it, for goodness’ sake, to the noble and learned Baroness, Lady Hallett, rather than to judicially review the government’s own instituted inquiry? Further, and finally, how is it appropriate to use the leverage of withdrawing legal funding from witnesses as a means of deciding that those witnesses—whoever they are, whether I like them or not and whether I agree with them or not—should not co-operate with the inquiry of the noble and learned Baroness, Lady Hallett, for fear of having legal support withdrawn?

[Baroness Neville-Rolfe (Con)]

Perhaps I could pick up that last point, which the noble Lord, Lord Allan, also raised—

[Baroness Smith of Basildon (Lab)]

It was me.

[Baroness Neville-Rolfe (Con)]

My apologies. There is a well-established precedent, as we all know—I think it goes across many Administrations—that former Ministers are supported with legal representation after they leave office. The cost of that is met from government funds and for good reasons, I think, for when those of us who serve as Ministers are doing so. When the former Prime Minister, Boris Johnson, decided to recuse from being supported by government legal services a letter was sent to him, explaining that it was possible for him to have his legal advice—if this is what was being referred to—paid for, subject to the normal rules of value for money, as the Permanent Secretary has to sign off that money is properly spent. I think it is a non-issue and that he is now drawing on his own solicitors, Peters & Peters, for advice.

The noble Baroness, Lady Chakrabarti, explained that we all agree that we have empowered a very eminent judge. I think she was making the point that it is up to the judge to decide what is relevant and what is not. We agree that the framework of the inquiry is for her to decide, but there is this narrow point about unambiguously irrelevant documents and messages. Some of those are WhatsApps, as has been mentioned. Since the Act was passed, WhatsApps have become a much more common form of communication. You can imagine that in the bundles there is a combination of personal communication and matters that are completely unconnected to the Government’s handling of Covid.

I want to make it clear—the Paymaster-General made it completely clear in the other place—that documents relating to Covid and potentially relevant material will be made available to the inquiry. It is a broad-ranging inquiry. We owe it to the people who lost their lives and those whose relatives lost their lives to find out what happened. The inquiry has to be of a very wide-ranging nature. However, in some of those documents and notebooks, there is material which is completely unconnected to the Covid inquiry.

We have therefore asked a judge to use the process of judicial review—those noble Lords who have been involved in the courts will know this is quite a common process—to rule on this technical point. We hope to have a hearing on this by the end of June so that things will be clear. In the meantime, we are continuing to submit material every day to the inquiry and to work with it.

[Lord Faulks (Non-Afl)]

My Lords, I apologise for missing the first 30 seconds of the observations of the noble Baroness, Lady Smith. Some of us were standing by and did not expect business to proceed quite as quickly as it did. I think some others may be in the same position.

The optics of this are not particularly good. I can understand the observations made by the noble Baroness, Lady Smith, and the noble Lord, Lord Allan. Clearly, individuals involved in this inquiry should not be able to hide behind process and conceal anything which may be relevant to the inquiry. I of course share with others the confidence in the noble and learned Baroness, Lady Hallett, as an entirely suitable chair with a very important role to fulfil.

I find some reassurance in the Statement in the description of the process, which has been undergone and will continue, in deciding what should or should not be disclosed. It says:

“Witnesses are required to identify any material that may contain potentially irrelevant information … with guidance from the counsel team supporting them. That is then reviewed by the counsel team, who identify any material that is unambiguously irrelevant. The counsel team discusses it with the witness in case there is any context or detail of which they may not be aware. The review … team includes … a King’s Counsel … No decision to redact material as unambiguously irrelevant has been or will be taken by a witness acting alone”.


There is an important role for the lawyers, rather than the witnesses, in deciding on relevance, although that is a continuous process. This is perfectly familiar to those like me who have been involved in disclosure and judicial review generally. It seems that there is a matter of importance in deciding what should and should not be disclosed, not just for the purposes of this inquiry but for inquiries in the future which may involve different Governments on different issues.

However, I ask the Minister whether it is possible to reach some kind of compromise on this, so that in the process described, which should be able to identify matters which are relevant or unambiguously irrelevant, there should be some circle of confidence involving the inquiry and its chair’s lawyers to enable her, her team and the government lawyers to ascertain what is truly relevant while not wasting a lot of time on things that are irrelevant and without forcing some judge to make a rather difficult decision on where the parameters lie.

[Baroness Neville-Rolfe (Con)]

I thank my noble friend for his wise advice and the background. We miss him on the Front Bench, and it is good that he has come to talk to us today. As evidence of his point, materials are carefully considered. One of the issues under debate was the Sarah Everard processes. In this case, a message that appeared unconnected to Covid was initially redacted, but it was then identified as potentially relevant as part of the additional counsel review, which the noble Lord referred to, so the Cabinet Office then provided it to the inquiry proactively. A process is going on, and a large team is working away at this. All along, our legal team in the Cabinet Office looking after the inquiry has tried to agree on sensible arrangements. We have entered a JR, but we remain hopeful and willing to agree the best way forward with the inquiry, if that is possible.

[Baroness Brinton (LD)]

My Lords, one of the strengths of a judge-led public inquiry is that it is able to look at everything, including the emerging wider context and competing pressures facing those who have to come to some very difficult decisions. Inquiries such as the Leveson inquiry, that on Hillsborough and, more recently, IICSA have all had confidential information and have had to decide what to redact. I was peripherally involved in the latter of those as a witness, and it was somewhat nerve-racking to hand over personal information, but I was utterly confident that the decisions would be made in the interests of the inquiry.

As the health spokesperson on the Front Bench during Covid and just before it first struck in January and February 2020, I note that there are a large number of issues, including the Government disbanding the pandemic preparedness group to leave more space for Brexit. NERVTAG and SAGE minutes between January and February changed very quickly, and it is illuminating to read them. But it was concerning to read that the Prime Minister missed the first five COBRA dates, and there were reports that he was not working on weekends during that early period. In addition to those reasons, some of what the inquiry needs to look at includes why the UK did not follow the World Health Organization guidance on testing and protection from the start, and why the UK Government sent PPE to China just at the point that the experts were saying that our health people needed it. We had health staff in bin bags because we did not have any PPE in this country.

For all these reasons, I ask the Minister whether she believes that the inquiry really needs to see the detail of that correspondence. It may look irrelevant from the outside, but, in terms of emerging contexts and competing decisions, it becomes vital to what happened and whether people lived or died.

[Baroness Neville-Rolfe (Con)]

The Government set up the inquiry for exactly the sorts of reasons that the noble Baroness outlined. These questions need to be answered. As I said, the Government are making available all relevant information—anything related to Covid or decisions about it is being made available. The judicial review is on a narrow technical point about unambiguously irrelevant items, and I assure the noble Baroness that the Government seek to ensure that the inquiry and its chair have all the information and access to witnesses that they need, to ensure that the very important questions that the chair is asking are answered. That is why we are having an inquiry. Of course, we want it to get on, and we look forward to learning the lessons as soon as possible.

[Lord Wallace of Saltaire (LD)]

My Lords, does the Minister recognise that this is a particular example of the confusions and contradictions into which the Government have now slipped, in terms of our constitutional conventions and of maintaining public confidence in constitutional government? After all, we are being asked to accept that what the Cabinet Office decides is or is not relevant to the inquiry should be accepted, rather than what a judge who is heading the inquiry considers.

According to recent public surveys, public trust in government is now lower than it has been in my lifetime; this is not a decision that would help to restore public trust. I spent the last 24 hours leading a very interesting new Constitution Unit publication on the executive prerogative. This is, after all, an issue of executive dominance, or acceptance that the rule of law is dominant. We have had a number of arguments in this House over the last two years about executive dominance versus parliamentary scrutiny. We have also had a parallel argument about the rule of law, the role of the courts and the influence of lefty lawyers—as is so often said in the right-wing media—and of the damage that excessive judicial review was doing to decent executive government. Now, we have the Government reversing and wanting to use judicial review, which they have been arguing about limiting for a good time, so that they can defend themselves against their own inquiry.

Does the Minister not agree that, after we come out of this, this Government or the next Government need to have a very thorough examination of the relationship between our courts, the rule of law and the Executive, and between the Executive and Parliament, to determine how they will restore wider public confidence in the balance between the institutions which hold our Government together?

[Baroness Neville-Rolfe (Con)]

I am grateful to the noble Lord for his thoughtful comments. Issues about the Executive and Parliament are ones that we debate. We have set up a very broad inquiry to learn the lessons and do the right things for the future. The Cabinet Office and other departments—because other departments are also party to the inquiry—have followed procedures that have worked well on a series of other inquiries. What we have found here is that there has been an issue about some unambiguously irrelevant information. That is not going to stop us making available all relevant material in relation to Covid. I think that people have just mistaken our intentions, but I am sure that it will be quickly resolved—obviously, that is my hope.

[Baroness Chakrabarti (Lab)]

So as not to mistake the Minister’s intentions, why not make the application not for judicial review but to the noble and learned Baroness, Lady Hallett, herself, by submitting with full disclosure with a submission that certain parts of it be redacted? That is what a Government do when they have trust in the judicial chair of their own inquiry, so why not do that?

[Baroness Neville-Rolfe (Con)]

As I hinted, we have been in discussion for some time, and we have tried to make progress. We have taken the view, on advice from our own King’s Counsel, that it is appropriate to seek a judicial review—so that we can get guidance on this narrow and technical point of law, particularly in the new era of communications—and that that is the sensible thing to do.

I failed to respond to an earlier question about the use of digital communications. I should repeat that this is something we debated. I made a Statement in March issuing the new guidance on the use of non-corporate communication channels, which distinguishes between things that must be recorded for posterity, and the disciplines that we as Ministers have to enter into, and the ephemera with which is not appropriate to clog up the record book. Obviously, it is early days, but I hope that that will help with these issues in the future. I also look forward to the clarity of this judicial review, into which we have entered with good faith and the expectation that it is proper, whatever might have been said by some others.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister has addressed a number of issues tonight but, looking back, I am not sure that she answered many of the questions that I asked at the beginning. I shall check Hansard. To press her on one point, she was clear that the inquiry was under the Inquiries Act 2005 and all parts were being complied with. I asked her about the judicial review, and she did not really respond to that. She may not have time to reply now, and she may not know the answer, given her previous answers, but I would ask her to look at Section 21 of that Act, which says that the person who chairs an inquiry can require a person giving evidence to

“produce any other thing in his custody or under his control”.

There is quite a bit in that section about the duty to comply with any request as

“determined by the chairman of the inquiry”,

which would imply that the Government may not be fulfilling all requirements under that section of the Act. I would be grateful if the Minister could look at that and write to me.

[Baroness Neville-Rolfe (Con)]

I can certainly look at it. The document that I mentioned, which is on the internet, starts off by going through exactly those paragraphs of Section 21 and picking up the points that the noble Baroness has made and explaining why. Interpretation is at the heart of the judicial review. As the noble and learned Baroness, Lady Hallett, helpfully made clear this morning when she made some comments in opening a phase of her inquiry, we should leave that to the court, and find out how that works out. But I am very familiar with Section 21.

21:06

Sitting suspended.