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Cite as: [2023] WLR(D) 302, [2024] 2 WLR 485, [2023] EWHC 1702 (Admin), [2024] KB 319

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		Neutral Citation Number: [2023] EWHC 1702 (Admin)
		Case No: CO/2012/2023

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

06/07/2023

B e f o r e :

LORD JUSTICE DINGEMANS
Vice-President of the King's Bench Division
and
MR JUSTICE GARNHAM
____________________

Between:

	THE KING On the application of the CABINET OFFICE	Claimant
	- and -
	THE CHAIR OF THE UK COVID-19 INQUIRY	Defendant
	- and -
	MR HENRY COOK THE RT HON BORIS JOHNSON	Interested Parties
	- and -
	THE CHAIR OF THE SCOTTISH COVID-19 INQUIRY	Intervener

____________________

Sir James Eadie KC, Christopher Knight and Shane Sibbel (instructed by the Government Legal Department) for the Claimant
Hugo Keith KC, Andrew O'Connor KC and Natasha Barnes (instructed by the Solicitor to the UK Covid-19 Inquiry) for the Defendant
Ben Fullbrook (instructed by Ignition Law) for the First Interested Party
Lord Pannick KC, Georgina Wolfe and Jason Pobjoy (instructed by Peters & Peters) for the Second Interested Party
Denis Edwards (instructed by Bindmans) for the Intervener by written submissions only

Hearing date: 30 June 2023
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

This judgment was handed down remotely at 2.30 on 6 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives

Lord Justice Dingemans and Mr Justice Garnham:

Introduction

This is the judgment of the Court. This claim raises issues about the proper interpretation of section 21 of the Inquiries Act 2005 ("the Inquiries Act") and the validity of a section 21 notice dated 28 April 2023 ("the notice") issued by the defendant, the Right Honourable Baroness Hallett DBE, the Chair of the UK Covid-19 Inquiry ("the Chair of the Inquiry") to the claimant, the Cabinet Office ("the Cabinet Office"). The notice required the production of various WhatsApp messages between 2020 and 2022 exchanged between the second interested party, the former Prime Minister, The Right Honourable Boris Johnson ("Mr Johnson"), and his advisers including a senior adviser to Mr Johnson, the first interested party, Henry Cook ("Mr Cook"). The notice also sought Mr Johnson's diaries and notebooks.

The Cabinet Office seeks permission to apply for judicial review and, if permission is granted, judicial review of both the decision to issue the notice and a ruling dated 22 May 2023 ("the ruling") of the Chair of the Inquiry on an application dated 15 May 2023, made pursuant to section 21(4) of the Inquiries Act by the Cabinet Office, to revoke the notice. In the ruling, the Chair of the Inquiry dismissed the Cabinet Office's application.

The claim made by the Cabinet Office is opposed by the Chair of the Inquiry. Mr Johnson supports the approach taken by the Chair of the Inquiry. Mr Cook adopts a neutral stance on the dispute, but wanted the Court to understand the circumstances in which he had come to be an interested party. The Chair of the Scottish Covid-19 Inquiry ("the Chair of the Scottish Inquiry") has intervened by written representations, which support the approach taken by the Chair of the Inquiry.

The evidence

There was no material dispute between the parties about the factual background. There are witness statements from: Martin Smith, a partner at Fieldfisher LLP, who is Solicitor to the Inquiry, who summarised the background to the notice and ruling; and Mr Cook, who referred to his role as a former special adviser in No 10 supporting Mr Johnson, and who summarised his dealings with the inquiry.

We were also provided with a confidential annexe to the core bundle. This contained 265 pages of WhatsApp threads in their complete form. There were seven different threads with various different persons all including Mr Cook. The whole of the bundle had been provided, without prejudice to the Cabinet Office's challenge to the legality of the notice, to the Chair of the Inquiry in support of the Cabinet Office's application to revoke the notice. The Cabinet Office had marked up those passages which it considered to be "unambiguously irrelevant" and which the Chair of the Inquiry commented upon in the ruling.

The factual background

Mr Johnson, when Prime Minister, announced in May 2021 the setting up of an inquiry pursuant to the Inquiries Act, which was to commence in 2022. There was a public consultation on the Terms of Reference. Final Terms of Reference were published on 28 June 2022.

The Terms of Reference provided that: "the Inquiry will examine, consider and report on preparations and the response to the pandemic in England, Wales, Scotland and Northern Ireland, up to and including the Inquiry's formal setting-up date, 28 June 2022".

The Terms of Reference identified the aims of the Inquiry. These provided: "Aim 1. Examine the COVID-19 response and the impact of the pandemic in England, Wales, Scotland and Northern Ireland, and produce a factual narrative account, including: a) The public health response across the whole of the UK… b) The response of the health and care sector across the UK… c) The economic response to the pandemic and its impact… Aim 2. Identify the lessons to be learned from the above, to inform preparations for future pandemics across the UK."

The Chair of the Inquiry made an opening statement emphasising that "I am determined to run the inquiry as thoroughly and as efficiently as possible …". The Chair of the Inquiry reported that there would be a number of different modules. The notice which has given rise to this claim for judicial review arises in relation to module 2. The Inquiry has published a document in August 2022 setting out the provisional scope of module 2. That provides: 'This module will look at, and make recommendations upon, the UK's core political and administrative decision-making in relation to the Covid-19 pandemic between early January 2020 until February 2022, when the remaining Covid restrictions were lifted. It will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet, as advised by the Civil Service, senior political, scientific and medical advisers, and relevant Cabinet sub-committees, between early January and late March 2020, when the first national lockdown was imposed.'

The Inquiry has published a draft list of issues for module 2. This includes: "did the UK central Government structures and processes at Prime Minister, Cabinet, Cabinet Office and Ministerial levels work effectively? … Were key decisions taken in a timely way and after a proper process of advice/consultation? … To what extent did informal communication (such as WhatsApp messaging) contribute to key strategic decision-making?". It is specifically recorded that the list is not exhaustive or prescriptive and issues may emerge as the investigation progresses.

Mr Smith, as Solicitor to the Inquiry, referred to the iterative process by which documents were obtained. This included issuing of draft rule 9 requests, reviewing and analysing the materials, making requests to complete a particular line of inquiry or to pursue a new line of inquiry. Rule 9 is part of the Inquiry Rules 2006 (SI 2006/1838) ("the Inquiry Rules").

The Inquiry has published various protocols for the handling of documents. A Protocol on Documents was published on 29 July 2022, and a further Protocol on the Redaction of Documents on 18 October 2022. A Protocol on Applications for Restriction Orders was also published. So far as is material the Protocol on the Redaction of Documents provides:

'3. … First, it will make requests from Material Providers for documents which are considered to be of potential relevance to its Terms of Reference. The scope of each request will be set by the Inquiry's legal team and may relate to one or more of the Inquiry's modules. It is important that the Inquiry receives documents from Material Providers in clean, unredacted form. The provision of documents must not be delayed on grounds that the Material Provider seeks redactions to the material … 5. Second, the Inquiry legal team will review the documents to identify those which are relevant to the scope of any module. It is for the Inquiry legal team alone to determine relevance of any particular document. Any document which is identified as relevant will be disclosed to Core Participants, subject to the application of redactions which will be made by the Inquiry…6. Third, before documents are disclosed to Core Participants, the Inquiry will share such documents with the Material Provider in question who will be given an opportunity to review and approve the redactions applied and identify any further redactions it seeks (the "Material Provider Review")…'

The requests and the section 21(4) application

On 5 September 2022 the Inquiry issued a rule 9 request to the Cabinet Secretary seeking a corporate statement in draft form. Notice was given that the Inquiry was likely to make requests for, among other matters, WhatsApp messages and other types of communication. Attention was drawn to the Protocol on Documents which required documents to be provided in unredacted form.

On 12 December 2022, the Inquiry issued a rule 9 request to Mr Cook. A rule 9 request was issued to Mr Johnson in draft in February 2023 and, following further discussions between the Inquiry and Mr Johnson's legal team, a rule 9 request in final form was made on 1 March 2023.

The rule 9 requests provided requests for, among other matters, "key Cabinet Office emails and other correspondence in relation to the issues you have discussed in your witness statement … any informal or private communications in the Cabinet Office about the Government's response to Covid-19 of which you were part including informal groups (such as text messages and WhatsApp groups) …". The Cabinet Office relies on the limitation "in relation to the issues" set out in the rule 9 request, and submits that the omission of similar wording in the notice makes it ultra vires.

In discussions between the Inquiry and the Government Legal Department in February 2023 concerns were reported about the security and sensitivity of information contained in various WhatsApp communications. Concerns were raised about using third party information technology forensic teams to extract the data. There was a discussion about potential closed material and sensitive and irrelevant material. In March 2023 the Cabinet Office stated that it had started a process of redacting content from WhatsApp messages, but the Inquiry stated that content should not be redacted. The Inquiry suggested a process for review of the unredacted material to be led by senior individuals, where the Cabinet Office could make representations about redactions. It was also pointed out that the Cabinet Office would be entitled to apply for a restriction order in accordance with the relevant Inquiry protocol.

There were further communications between those acting on behalf of the Cabinet Office and the Inquiry. It is not necessary to set out the points made in the correspondence in order to decide this claim, but it is apparent that there was an issue between the Cabinet Office and the Inquiry about who should decide whether any particular WhatsApp message was or might be relevant to the work of the inquiry. The Inquiry insisted on clean unredacted copies of all the WhatsApp messages so that they could be seen in context. The Cabinet Office asserted that it was entitled to redact the messages for relevance. It is apparent from the evidence before us that, by 14 June 2023, over 3,000 documents have already been supplied by the Cabinet Office to the Inquiry, including minutes of Cabinet meetings. These had been supplied without redactions and had then been redacted prior to disclosure to the core participants.

It appears that the Cabinet Office supplied to the Inquiry on 21 April 2023 WhatsApp messages from threads which involved Mr Cook. These threads showed the redactions which had been made by the Cabinet Office. This mirrored the confidential annexe provided to the Court. In the confidential annexe there were messages marked in yellow which the Cabinet Office maintained should be redacted because they were unambiguously irrelevant. There were messages marked in green, which showed messages which had been redacted but which redactions had been removed by the Cabinet Office after 21 April 2023. There were messages marked up in blue, which were redactions added by the Cabinet Office after 21 April 2023. In the yellow redacted category were, for example: messages about border incursions by one foreign state into the territory of another foreign state; and the trial of foreign nationals in the courts of another foreign state. It was submitted on behalf of the Cabinet Office that roughly a third of the WhatsApp messages were "unambiguously irrelevant", although it might be noted that this meant that two thirds of the messages were relevant.

On 28 April 2023, the Chair of the Inquiry issued the notice requiring the Cabinet Office to produce the documents listed in various Annexes in unredacted form. The documents were to be produced by 12 May 2023 for annex A(i) and by 29 May 2023 for annex A(ii).

Annex A(i) provided: "1. Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned/used by Henry Cook and which: a. Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government's response to Covid-19 ("group messages"); or b. Were exchanged with any of the individuals listed in Annex B ("individual threads") 2. Unredacted WhatsApp communications dated between 1 January 2020 and 24 February 2022 which are recorded on device(s) owned/used by the former Prime Minister, the Rt Hon Boris Johnson MP and which: a. Comprise messages in a group chat established, or used for the purpose of communicating about the UK Government's response to Covid-19 ("group messages"); or b. Were exchanged with any of the individuals listed in Annex B ("individual threads"). 3. Unredacted diaries for the former Prime Minister, The Rt Hon Boris Johnson MP covering the period 1 January 2020 to 24 February 2022."

Annex A(ii) identified: "Copies of the 24 notebooks containing contemporaneous notes made by the former Prime Minister, The Rt Hon Boris Johnson MP during the period 1 January 2020 to 24 February 2022. These notebooks are to be provided in clean unredacted form, save only for any redactions applied for reasons of national security sensitivity." The issues of national security sensitivity had been identified in discussions between the legal teams acting on behalf of the Inquiry and Cabinet Office.

The requests were summarised in the ruling by the Chair of the Inquiry as being: "First, WhatsApp communications recorded on devices owned or used by the former Prime Minister Boris Johnson MP and also an adviser named Henry Cook, comprising exchanges between senior government ministers, senior civil servants and their advisers during the pandemic (including both group messages and also messages between individuals (or 'threads')). Second, Mr Johnson's diaries for the same period, together with notebooks that I have been told contain his contemporaneous notes."

The notice stated that 'For the avoidance of any doubt, this Notice is issued on the basis that I consider the entire contents of the documents listed in Annex A(i) and (ii) to be potentially relevant to the lines of investigation being pursued by the UK Covid-19 Inquiry'. The notice identified that "if the Cabinet Office claims that it is unable to comply with the Notice, or that it is unreasonable in all the circumstances for the Cabinet Office to do so, it may apply to me, pursuant to section 21(4) of the Inquiries Act 2005, for revocation or variation of the Notice."

On 15 May 2023 the Cabinet Office made an application pursuant to section 21(4) of the Inquiries Act to revoke the entirety of the notice served on 28 April 2023.

We were told at the hearing that after the notice had been issued and the Cabinet Office had made its application pursuant to section 21(4) of the Inquiries Act there were no further written or oral communications between the Chair of the Inquiry and the Cabinet Office about the notice.

The ruling by the Chair of the Inquiry

The Chair of the Inquiry ruled on the Cabinet Office's application to revoke the notice in the ruling. The Chair of the Inquiry stated that she regarded the documents as being of significance in two ways. The first was that they contained information potentially relevant to module 2 of the inquiry. The second was that there was an expectation by the core participants and the public that all relevant documents were disclosed for use in the inquiry and that the Chair and her team would keep that position under review as the inquiry progressed.

The Chair of the Inquiry turned to a jurisdictional objection to the notice. The Cabinet Office argued that the documents contained "unambiguously irrelevant material" and that the Chair of the Inquiry had no power to issue a notice in respect of material falling within that category, meaning that the notice should be revoked. The Cabinet Office had also provided on a pragmatic basis copies of materials in unredacted form showing that the materials included information that was clearly irrelevant to the work of the inquiry.

The Chair of the Inquiry doubted that a wholesale challenge to the legality of a section 21 notice fell within the scope of section 21(4) of the Inquiries Act. The Chair of the Inquiry inferred that the challenge was pursuant to section 21(4)(b) of the Inquiries Act on the basis that "it is not reasonable in all the circumstances to require him to comply with" the notice. The Chair of the Inquiry considered that the better procedure for challenging the whole notice was an application for judicial review but dealt with the application on its merits.

The Chair of the Inquiry rejected the Cabinet Office's challenge on the basis that her decision to ask for the documents was premised on her assessment that the entire contents of the documents that were required to be produced were of potential relevance, which was not an irrational conclusion. The fact that the Cabinet Office reviewed the material and found some to be unambiguously irrelevant did not make the Chair of the Inquiry's assessment irrational.

The Chair of the Inquiry rejected the proposition that she would be acting ultra vires in requiring the production of material where the recipient of a section 21 notice declared the material to be "unambiguously irrelevant". This was because it "wrongly allocates to the holder of the documents, rather than to the inquiry chair, the final decision on whether documents are or are not potentially relevant to the inquiry's investigations". This was held to be problematic on the grounds that it was inconsistent with the broader statutory scheme, the mere assertion of unambiguous irrelevance could not extinguish the power to require production of the documents. There was no proper parallel with litigation because there was no judge to look at the documents in cases of disputed relevance. Further those who hold documents will never be in as good a position as the inquiry to judge the possible relevance of the documents.

In that regard the Chair of the Inquiry referred to a comparison of the redacted and unredacted documents which had been provided by the Cabinet Office to show that the redactions had been properly made. The Chair of the Inquiry recorded that some important passages, an example related to discussions between the Prime Minister and his advisers about the enforcement of Covid regulations by the Metropolitan Police during public demonstrations following the murder of Sarah Everard, were originally assessed by the Cabinet Office as unambiguously irrelevant when it was now common ground that they were relevant. The Chair of the Inquiry also recorded that there were some further passages, an example relating to WhatsApp messages about policy formation and relations between the Scottish and UK governments, which the Chair of the Inquiry considered were relevant to her inquiry. Finally the Chair of the Inquiry recorded that the balance of the material could, at present, be categorised as not relevant, but that the matter would be kept under review and that the Cabinet Office had not formally sought a ruling on relevancy.

The Chair of the Inquiry did not consider that the requirements of the notice infringed article 8 of the European Convention on Human Rights ("ECHR") or the UK General Data Protection Regulations.

Further communications and these proceedings

Following the ruling the Cabinet Office applied for permission to seek judicial review. Mr Johnson made it clear that he was willing to provide the documents requested to the inquiry without redactions.

The respective cases and the issues

The grounds on which the Cabinet Office bring their claim for judicial review are that: (1) the compulsory powers conferred on inquiries by the Inquiries Act do not extend to the compulsion of material that is irrelevant to the work of an inquiry; (2) a notice issued pursuant to section 21 of the Inquiries Act must be limited by reference to relevance; (3) the Chair of the Inquiry concluded that the entirety of the material compelled by the notice was, or might be relevant, to the Inquiry's work. That conclusion was irrational given the breadth of the Notice, and the material before the Chair of the Inquiry.

Sir James Eadie KC submitted on behalf of the Cabinet Office that the inquiry, being a creature of the Inquiries Act, could only act in accordance with the Inquiries Act and this notice was ultra vires. This was because the notice was not limited by reference to relevance and it was cast by reference to documents and classes of documents which was bound to include a significant quantity of irrelevant material. The requirement for every document to "relate to a matter in question at the inquiry" was a precedent fact. The notice was not sufficiently targeted so as to ensure that each document was relevant to the work of the inquiry. A limitation similar to that in the rule 9 notices which had been served, which provided limitations such as "relating to your involvement in the UK Government's response to COVID-19", should have been inserted into the notice. Section 21 set out a precedent fact for the exercise of the power, namely that the documents "relate to a matter in question at the inquiry". It was not a matter of discretion for the Chair of the Inquiry to consider, because the statutory draftsman knew how to confer a discretion on the Chair in the opening words of section 21(2) ("as appears to the inquiry panel to be reasonable") which were omitted from 21(2)(b). The fact that a single document would be obtained which was irrelevant to the inquiry's terms of reference was enough to show that the notice was unlawful, but in this case roughly a third of the documents were irrelevant.

It was further submitted that the Chair of the Inquiry's conclusion that the entirety of the material compelled to be produced by the notice was or might be relevant was irrational, given the breadth of the notice and in the light of the material before the Chair of the Inquiry.

It was submitted by Hugo Keith KC on behalf of the Chair of the Inquiry that the correct interpretation of section 21, which empowers the Chair of the Inquiry to require production of any documents that 'relate to a matter in question at the inquiry', is that it includes all documents that the Chair of the Inquiry reasonably considers are potentially relevant to her ongoing investigation. This was not a case of precedent fact because an inquiry was entitled to explore lines of investigation and fish for documents. The Chair of the Inquiry was entitled to take the view that the requested documents were potentially relevant to the inquiry's lines of investigation and she had made a decision to that effect as appeared from the terms of the notice and ruling. The Cabinet Office could not show that either (a) the Chair's initial conclusion that the entirety of the documents covered by the Notice were 'potentially relevant', or (b) her subsequent decision under section 21(4) of the Act to reject the Cabinet Office's challenge to the notice, were irrational or wrong in law. Mr Keith submitted that permission to apply for judicial review should be refused and, in any event, if the claim proceeded it should be dismissed.

Mr Fullbrook on behalf of Mr Cook relied on Mr Cook's witness statement and his written Skeleton Argument. These explained that Mr Cook had got caught up in the dispute between the Cabinet Office and the Chair of the Inquiry because he had completed his draft witness statement pursuant to the rule 9 request before other former Downing Street advisers.

Lord Pannick KC on behalf of Mr Johnson adopted and supported the submissions made by Mr Keith on behalf of the Chair of the Inquiry. Lord Pannick referred to authorities showing the latitude given to inquiries seeking to pursue lines of inquiry.

The Chair of the Scottish Inquiry intervened by way of written submissions only. In those submissions Denis Edwards supported the approach taken by the Chair of the Inquiry to section 21 and drew attention to the fact that the Inquiries Act applied throughout the United Kingdom. It was submitted that this meant that peculiarly English concepts of civil procedure relating to disclosure were unlikely to assist in interpreting the Act. The Cabinet Office responded to those written submissions pointing out that Parliament must be taken to have known the long established and authoritative meaning of "relates to a matter in question" and that the test proposed on behalf of the Cabinet Office could properly apply throughout the United Kingdom.

By the conclusion of the hearing it was apparent that the following matters were in issue: (1) whether we should grant permission to apply for judicial review to the Cabinet Office; and if permission to apply is granted: (2) whether the section 21 notice was valid; (3) whether the Chair of the Inquiry's conclusion that the material produced by the notice was or might be relevant was irrational.

We are very grateful to Sir James Eadie, Mr Keith, Mr Fullbrook, Lord Pannick and Mr Edwards, and their respective legal teams, for their helpful submissions.

Relevant statutory provisions

Section 1 of the Inquiries Act provides that a Minister may cause an inquiry to be held where "(a) particular events have caused … public concern, or (b) there is public concern that particular events have occurred". Section 2 provides that an inquiry panel is not to rule on and has no power to determine civil or criminal liability.

Section 5 featured prominently in the submissions before the Court. It provides for the setting up of an inquiry and the requirement on the Minister to "set out the terms of reference of the inquiry". Section 5(5) provides that "functions conferred by this Act … are exercisable only within the Inquiry's terms of reference." Section 5(6) provides that "`terms of reference', in relation to an inquiry under this Act, means (a) the matters to which the inquiry relates; (b) any particular matters as to which the inquiry panel is to determine the facts …".

Section 17 provides "(1) Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct … (3) in making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost".

Section 21 confers a power on the Chair to compel the production of, among other matters, documents. The notice in this case was issued under section 21. It provides:

"(1) The chairman of an inquiry may by notice require a person to attend at a time and place stated in the notice—

(a) to give evidence;

(b) to produce any documents in his custody or under his control that relate to a matter in question at the inquiry;

(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.

(2) The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable—

(a) to provide evidence to the inquiry panel in the form of a written statement;

(b) to provide any documents in his custody or under his control that relate to a matter in question at the inquiry;

(c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.

(3) A notice under subjection (1) or (2) must—

(a) explain the possible consequences of not complying with the notice;

(b) indicate what the recipient of the notice should do if he wishes to make a claim within subsection (4).

(4) A claim by a person that –

(a) he is unable to comply with a notice under this section, or

(b) it is not reasonable in all the circumstances to require him to comply with such a notice,

is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.

(5) In deciding whether to revoke or vary a notice on the ground mentioned in subsection (4)(b), the chairman must consider the public interest in the information in question being obtained by the inquiry, having regard to the likely importance of the information.