In May 2021 the Prime Minister announced that there would be a public inquiry pursuant to the Inquiries Act 2005 concerning the Covid-19 pandemic. The terms of reference set out the aims of the inquiry as being an examination of the response to and impact of Covid-19 which would produce a factual, narrative account of the public health, health and care sector, and economic responses to the pandemic across the United Kingdom, and which would identify the lessons to be learned to inform preparations for future pandemics. The inquiry chair reported that the inquiry would be run in several modules, the scope of the second of which was concerned with the UK’s core political and administrative decision-making between early January 2020 and February 2022 with particular regard to the decisions of the Prime Minister and Cabinet, as advised by the Civil Service, scientific and medical advisers and Cabinet sub-committees between January and late March 2020 when the first lockdown was imposed. The issues for consideration included a review of the structures and process which were followed in relation to key decision-making and the extent to which informal communications on social media and messaging applications contributed to the decision-making. On 28 April 2023, the inquiry chair issued a notice under section 21 of the 2005 Act, requiring unredacted copies of documents which were considered to be potentially relevant to the lines of investigation being pursued, including the official diaries and notebooks of the Prime Minister, any messages exchanged in a message group chat established or used for the purpose of communicating about the Covid-19 response and messages individually shared between the Prime Minister, senior government ministers, senior civil servants and their advisers. The Cabinet Office applied to the chair to revoke the notice under section 21(4) of the 2005 Act, contending that the documents contained “unambiguously irrelevant material” and that the chair was not entitled to issue a notice in respect of material falling within that category. The chair ruled on the application, concluding that, irrespective of the fact the Cabinet Office had found some material to be irrelevant, it had not been irrational for the chair to have assessed that the entire contents of the documents required to be produced were of potential relevance and that the final decision on whether the documents were or were not relevant was for the chair in any event. The Cabinet Office sought judicial review of the decision to issue the notice and the ruling dated 22 May 2023 on the grounds that (1) the compulsory powers conferred on inquiries by the Inquiries Act did not extend to the compulsion of material that was irrelevant to the work of an inquiry, (2) a notice issued pursuant to section 21 of the Inquiries Act ought to be limited by reference to relevance and (3) it had been irrational for the Chair of the Inquiry to conclude that the entirety of the material compelled by the notice was, or might be relevant, to the Inquiry’s work. The application for permission to proceed and the substantive claim were determined at a combined hearing.
On the application for permission to proceed and on the claim—
Held, permission to proceed granted but claim dismissed. (1) By section 5(5) of the Inquiries Act 2005, a public inquiry could only exercise its functions within the parameters of the terms of reference which identified the matters of public concern. However, it was well established that an inquiry established under the Act differed from civil or criminal litigation in that it was investigatory and inquisitorial by nature and the issues fell to be determined by the conduct of a thorough investigation during which leads would be followed, some of which might lead to new lines of inquiry. The rules of evidence relevant to criminal or civil litigation were therefore not applicable nor binding on an inquiry. Thus, where an inquiry, in good faith, sought to establish a relevant connection between certain facts and the subject matter for the inquiry, it would not be regarded as acting outside the terms of reference to issue a notice under section 21(2)(b) requiring a person to provide documents “that relate to a matter in question at the inquiry”. Accordingly, the inquiry chair had been entitled to issue the section 21 notice to the Cabinet Office which sought the provision of documents which were very likely to contain information about communication and decision-making related to the Covid-19 pandemic and thus related to a matter in question at the inquiry (paras 52, 53, 60–64, 76).
(2) It was established that inquiries were to be given a latitude, not provided to parties in civil proceedings, to fish for documents by making informed but speculative requests for documents relevant to lines of inquiry or which might lead to new lines of inquiry. Moreover, the scheme of the Inquiries Act recognised that irrelevant documents might be obtained by a section 21 notice, and expressly enabled a party required to produce documents to make an application to the chair of the inquiry under section 21(4) saying that it was not reasonable in all the circumstances for him to comply. Where a party was concerned about producing documents some of which related to a matter in question at the inquiry and some of which did not, the proper procedure was to make an application pursuant to section 21(4) on the basis that it was unreasonable to be required to produce documents which did not, in fact, relate to a matter in question at the inquiry. The chair of the inquiry, with knowledge of the lines of inquiry which were relevant, could examine the documents, without prejudice to the objection to produce them, and determine the question, returning “obviously irrelevant” documents. Where, following examination, the chair ruled that the document was not related to a matter in question at the inquiry, they would not be entitled to retain the document, especially if it contained sensitive personal information. However, if the chair ruled that the document related to a matter in question at the inquiry and the person producing the document continued to contest that it did so, they could invite the chair to certify the question to be determined by the High Court pursuant to section 36 of the Inquiries Act. Therefore, the fact that a request for documents might yield some irrelevant documents did not invalidate the notice nor mean that section 21(2)(b) could not lawfully be exercised and it was not necessary to add a qualification such as “relating to a matter in question at the inquiry” to the request for it to be valid. Accordingly, the section 21(b)(2) notice issued in the present case was valid and, for similar reasons, the chair had not acted irrationally in issuing the notice or in making the ruling under section 21(4) (paras, 64–75, 76).
Sir James Eadie KC, Christopher Knight and Shane Sibbel (instructed by Treasury Solicitor) for the Cabinet Office.
Hugo Keith KC, Andrew O’Connor KC and Natasha Barnes (instructed by Solicitor to the UK Covid-19 Inquiry) for the inquiry chair.
Ben Fullbrook (instructed by Ignition Law) for Henry Cook, as the first interested party.
Lord Pannick KC, Georgina Wolfe and Jason Pobjoy (instructed by Peters & Peters) for Boris Johnson, as the second interested party.
Denis Edwards (instructed by Bindmans LLP) for the Chair of the Scottish Covid-19 Inquiry, intervening, by written submissions only.