Covid-19 Inquiry: Judicial Review

Debate between Baroness Smith of Basildon and Lord Allan of Hallam

Tuesday 6th June 2023 Lords Chamber

[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.