Covid 19 Inquiry: Judicial Review

Eleanor Laing Excerpts

Monday 5th June 2023 Commons Chamber

[Madam Deputy Speaker (Dame Eleanor Laing)]

I have a short statement to make about sub judice, which is important in connection with this statement. Some of the matters covered by the statement are currently being considered by the courts, but given the national importance of the issue, Mr Speaker is exercising his ability to waive the sub judice resolution in order to allow references to them, both during proceedings on this statement and on an ongoing basis.

[The Minister for the Cabinet Office and Paymaster General (Jeremy Quin)]

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, as you so eloquently said, Madam Deputy Speaker, 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 hon. 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. Hon. 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 goodwill 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.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the shadow spokesperson.

[Fleur Anderson (Putney) (Lab)]

I thank the Minister for an advance copy of his statement. This weekend I walked the length of the covid memorial wall on the banks of the Thames just opposite this building. Every heart on that wall symbolises a life lost to covid. Every heart represents a family who lost a loved one—a mother, father, sibling, friend or colleague—to that terrible disease. That is what the covid inquiry is about: preventing a repeat of that same tragedy, which cost so many lives and still affects so many of us; and answering the questions that so many families still have.

This week, we all watched with embarrassment—I am sure that Government Members on the Benches behind the Minister feel the same privately—as the Cabinet Office, the Department responsible for upholding transparency in government, briefed journalists that taxpayers would be picking up yet another legal bill to pay for the Prime Minister’s ploy to obstruct the covid inquiry. We need more information: public inquiries are a core ministerial responsibility in the Cabinet Office; and vital lessons are learned through inquiries, which save lives in the future. By undermining and challenging the inquiry, the Government could undermine not only trust but public safety. Then, there is the cost: hundreds of thousands of pounds of taxpayers’ money on legal fees.

May I ask the Minister a few straightforward questions? How much has his Department projected the judicial review to cost? Does he agree with his Minister’s assessment that the review will “probably” fail? Does he think that time would be better spent on complying with the inquiry, handing over the information and learning lessons to prevent another pandemic, rather than this infighting?

Can the Minister confirm media reports that his Department’s lawyers have threatened to pull the plug on the taxpayer-subsidised legal defence fund for the right hon. Member for Uxbridge and South Ruislip (Boris Johnson)? Does he agree that Ministers must be held to the highest standards of transparency and openness? In that spirit, what guidance has he given to other Cabinet Ministers about handing over WhatsApp messages to the inquiry? Will we be back here again?

How many inquiry-imposed deadlines for evidence submissions have been missed to date? Can the Minister confirm whether the Prime Minister has already handed over his WhatsApp messages to the inquiry in full? Can he confirm how many devices have been handed over by the former Prime Minister?

The Minister claims that the Government have handed over 55,000 documents to the covid inquiry. I commend civil servants for working through the night to look at them, but his Department previously admitted that well over 20 million documents could be relevant. What criteria have been used to determine whether evidence will be suppressed?

It comes down to trust. We need to be able to trust the process and the determination of what is relevant and what is not. People’s trust in this Government is severely weakened, and the judicial review is undermining it further.

[Jeremy Quin]

The hon. Lady started where I ended, and she is right that the focus of the inquiry must be the people who have been affected and bereaved and the lessons that this country needs to learn. I commend her for her walk over the weekend. It is harrowing to see that memorial and to remember what it represents.

Government is tough. It is easier, in many ways, to be in Opposition. They do it very well on the Opposition Benches, and I am sure that they will get even more practice over a long period of time, but in government we have to take very difficult decisions. It does not take a genius to realise that the decision we felt we had to make regarding a judicial review may be misinterpreted and criticised, but we have to look at the long-term consequences for this and future Governments. There are important—albeit technical—matters of law, and we need guidance to ascertain how this and future inquiries should operate.

The hon. Lady asked a series of questions, one of which was on cost. I cannot give her an exact number, but I am delighted that, from what we have heard from the courts, the judicial review looks to be heard very soon and in a timely fashion, which I would welcome for a number of reasons. I will certainly not get into our view of the case. That would be pertinent; it is before the courts, which must look into that and take their own view.

I will go through all the points the hon. Lady made. There is a long tradition, under all Administrations, that Ministers should be provided with support for their legal fees and for their work to support and help the inquiries that are established—that is the right thing to do.

The hon. Lady is right that we have already passed over some 55,000 items. To counsel a note of caution about the hon. Lady’s reference to 2 million documents, those undertaking the inquiry have made it clear that they do not want to be flooded with information that is not relevant to the inquiry, and therefore we go through the process of trying to ensure that they get all the information that they require that is covid related. The point of issue is only material that is unambiguously not relevant to the inquiry. We go through a process, which I have set out to the hon. Lady and to the House.

I reiterate that we have a great deal of confidence in the inquiry. We know that those undertaking the inquiry are absolutely assiduous in their work, but we feel that there is a technical point of law on which we need to have guidance from the courts, and that is what we are pursuing.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the Chairman of the Select Committee on Public Administration and Constitutional Affairs.

[Mr William Wragg (Hazel Grove) (Con)]

The problem is that if Government business is conducted by means of WhatsApp, public inquiries will express an interest in reading what was transacted. My right hon. Friend is well aware of what a statutory public inquiry is and how that is established under the Inquiries Act 2005. Indeed, he referenced section 21 of that Act, which makes it clear that it is for the inquiry chair to decide what is required. When he says that the question is about material that might be “unambiguously” irrelevant, surely it is for the chair to determine that. It was spurious nonsense to hear some Ministers witter on about personal information about their children being disclosed—that is not the case. Nor is it my understanding that any of this material will be subject to a freedom of information request. May I ask my right hon. Friend why, sadly, the Government have chosen this course of action?

[Jeremy Quin]

I thank my hon. Friend, but in my recollection the Act refers to related material. However, we will not dwell on that as it is a matter for the courts.

I have some sympathy with my hon. Friend regarding WhatsApp messages. Such messages should not be used for taking policy decisions; those decisions should be taken formally and through the proper course. Any WhatsApp information presented will cover all manner of things between individuals and may well include illness, family or other personal issues. That is simply a statement of fact.

I think it is absolutely vital that we have guidance on this technical point. When other inquiries reported, we were perhaps in an era before a whole range of means of communication, including WhatsApp. I would point out to my hon. Friend that while WhatsApp has got the attention, the technical point of law applies to all manner of communications, not simply WhatsApp, about what is unambiguously irrelevant or what is relevant, and the process will determine that.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the spokesperson for the Scottish National party.