Background to the claim
Ever since her appointment as Chair of the UK Covid-19 Inquiry (the Inquiry) in December 2021, Baroness Hallett has sought a fast-paced Inquiry. However, this was stalled somewhat when the UK Government (the Government), in a controversial move, raised a judicial review challenging the Inquiry’s powers to compel the production of unredacted WhatsApp messages.
In order to gather potentially relevant evidence, the Inquiry used its power of compulsion, under s.21 of the Inquiries Act 2005, to demand unredacted WhatsApp messages from over 40 current and former cabinet ministers, including former Prime Minister Boris Johnson, and current Prime Minister, Rishi Sunak.
The Government’s judicial review challenge was based on three grounds:
- The powers held by the Inquiry Chair do not permit them to compel material that is irrelevant to the focus of that Inquiry.
- A s.21 notice must be targeted at information that is relevant to the Inquiry. The Government asserted that this notice extended beyond what is relevant and was thus ultra vires (beyond its powers).
- Baroness Hallett’s conclusion that the material was, or may be, of relevance to the Inquiry was irrational, given the range of material sought. The Government considered that in stating that these materials are, “potentially relevant”, Baroness Hallett arrived at an “untenable, irrational conclusion.”
The decision
The High Court has found in favour of the Inquiry, and held that the s.21 notice was valid, and issued rationally by the Chair, Baroness Hallett. The fact that the s.21 notice would yield some irrelevant material does not invalidate a lawful notice, but that if there are irrelevant documents these can be redacted by the Government, or an application made to the Chair that it is not reasonable to comply with the notice.
What happens now?
The Inquiry will now have full access to the WhatsApp messages of the government officials and Baroness Hallett will conclude whether that material is relevant to the Inquiry. The Government will now work with the Inquiry to comply with the terms of the original request.
The independence and authority of the Inquiry (and its Chair) is confirmed by this decision, which will help preserve public confidence in the Inquiry process and the ultimate findings.
We expect the Scottish Covid-19 Inquiry will also take note of this decision, in terms of issuing its own requests for evidence.
From the Government’s perspective, this may affect the manner in which policy concerns are discussed in the future. Ministers and other officials will naturally be more circumspect with their private communications where there is increased risk that these may be made public further down the line. Indeed, the Government recently issued guidance on the use of “non-corporate communications” such as WhatsApp. This guidance recommends that information sensitive enough to be redacted should not be discussed on these channels. This could prove challenging in a workplace culture that has come to rely so heavily on these types of messaging services.
The Government has confirmed that it does not intend to appeal to the Court of Appeal.
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