The High Court has ended the debate around the breadth of the Inquiry Chair's powers under the Inquiries Act 2005 (the 2005 Act) to require the disclosure of documents. In its judgment of 6 July 2023, the High Court said that the section 21 notice issued by the Chair of the Inquiry was valid and inquiries are to be afforded latitude to "fish" for documents.
On Thursday, 6 July 2023, Lord Justice Dingemans and Mr Justice Garnham delivered their eagerly anticipated judgment. While they granted permission to the Cabinet Office to apply for judicial review (considering that it had met the threshold of an arguable case), they dismissed the substantive claim.
What was the claim about?
The issue in the claim centred on the breadth of the material sought from the Cabinet Office by the Chair of the Inquiry, Baroness Hallett, as set out in the section 21 notice dated 28 April 2023.
The section 21 notice required the production of various WhatsApp messages between 2020 and 2022 exchanged between the former Prime Minister, Boris Johnson, and his advisers in relation to the Government's handling of the Covid-19 pandemic. It also sought Mr Johnson's diaries and notebooks.
The material was sought by Baroness Hallett as being "potentially relevant to the lines of investigation being pursued by [the Inquiry]".
The Cabinet Office argued that Baroness Hallett had no power to require disclosure of such material because:
- the compulsory powers conferred on inquiries by the 2005 Act do not extend to the compulsion of material that is irrelevant to the work of an inquiry;
- under section 21, notices must be limited by reference to relevance and be sufficiently targeted so as to ensure that each document was relevant to the work of the Inquiry; and
- the Chair's conclusion that the entirety of the material compelled by the notice was, or might be, relevant to the Inquiry's work was irrational given the breadth of the notice, and the material before her.
It was submitted on behalf of Baroness Hallett 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 in the inquiry', is that it includes all documents that the Chair of the Inquiry reasonably considers are potentially relevant to her ongoing investigation. It was further submitted that an inquiry was entitled to explore lines of investigation and "fish for documents" and 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.
A practical issue also divided Baroness Hallett and the Cabinet Office, namely who should decide whether any particular WhatsApp message was or might be relevant to the work of the Inquiry? Should the final decision rest with the holder of the documents or the Chair of the Inquiry?
What did the Court decide?
The Court held that the section 21 notice issued by Baroness Hallett "was served to require the production of documents that 'relate to a matter in question at the inquiry'". It was therefore valid and Baroness Hallett was rational in her request for the information. The documents sought were very likely to contain information about decision-making relating to the pandemic and the fact that it was common ground that two thirds of the WhatsApp messages were relevant demonstrates that the Chair was justified in requesting these.
The fact that the section 21 notice might also yield some irrelevant documents did not invalidate the notice or mean that the Chair's power conferred by section 21(2)(b) of the 2005 Act cannot lawfully be exercised. Under the 2005 Act, inquiries are to be given a latitude, not provided to parties in civil proceedings, to enable them to "fish" for documents. That is to "make informed but speculative requests for documents relevant to lines of inquiry, or documents which lead to new lines of inquiry".
The Court also pointed out that the 2005 Act already recognises that irrelevant documents might be obtained by a section 21 notice and provides a "scheme" for dealing with that. A party required to produce documents can make an application to the Chair of the Inquiry pursuant to section 21(4) saying that "it is not reasonable in all the circumstances to require him to comply". That can include that a document caught by the request does not, as a matter of fact, relate to a matter in question at the Inquiry.
Where such a contention is made, it will be for the Chair of the Inquiry to determine how to deal with it, since the Chair will have knowledge of the lines of inquiry which persons asked to produce documents do not have. This will likely require provision of the disputed documents to the Chair, without prejudice to the objection to produce them, so that the Chair may examine the contested documents and determine the application. If the Chair agrees that they do not relate to a matter in question at the Inquiry, the Chair will return them. Any refusal by the applicant to produce the disputed documents may be determined by the High Court pursuant to section 36 of the 2005 Act (albeit at the risk of criminal proceedings). The Court said that the existence of such a "scheme" in the 2005 Act was inconsistent with the Cabinet Office's contention that a notice seeking any "obviously irrelevant" document must be unlawful.
Implications of the decision
The decision reinforces the role of the Chair of the Inquiry to conduct a thorough investigation and the latitude given to inquiries seeking to pursue lines of inquiry. Indeed, the case drew parallels between public inquiries and the role of Coroners, whose duty is to "ensure that the relevant facts are fully, fairly and fearlessly investigated" and "exposed to public scrutiny".
Clearly, inquiries cannot go off on a 'frolic of their own' and the powers of an inquiry are not without limits but the Chair of the Inquiry is entitled, subject to the overarching duty of fairness, to direct the procedure to be employed by the Inquiry. The Courts will be reticent to interfere unless it is essential for them to do so to uphold the rule of law.
Many will feel this is the correct decision, given the alternative would very likely have undermined transparency and public confidence in what these public inquiries are intended to achieve.
It remains to be seen what impact this decision will have on the use of non-corporate communication channels such as WhatsApp, private email and SMS in Government and the updated guidance published by the Government in March 2023 on their use.
However, as the Inquiry continues to announce and open new modules, potential Core Participants and potential witnesses should take early preparatory steps to capture potentially relevant evidence for the Inquiry proceedings. It may not always be obvious what is potentially relevant to the lines of investigation being pursued by the Inquiry but, where the Chair seeks disclosure through the mechanisms of Rule 9 of the Inquiry Rules and/or section 21 of the 2005 Act, those requests should be responded to as openly and fully as possible bearing in mind the Inquiry team will determine the relevance of any particular document, and documents should be provided in clean, unredacted form.
The Cabinet Office has said that it accepts the judgment and will not appeal.