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The recent debate around Boris Johnson's WhatsApp messages brings into sharp focus the extensive powers of public inquiries to force the disclosure of documents and the need to take early preparatory steps to capture potentially relevant evidence for inquiry proceedings.  

The Inquiries Act 2005 (the "2005 Act"), which governs the current Covid-19 Inquiry (the "Inquiry"), allows Baroness Hallett as the Chair of the Inquiry to require any person to "produce any documents in his custody or under his control that relate to a matter in question at the inquiry" by way of a 'section 21 notice'.

Where Baroness Hallett takes the view that certain information is relevant to the scope of the Inquiry, she can order production. Such information must then be handed over within a "reasonable" period of time. Failure to do so without a reasonable excuse constitutes a criminal offence, which carries with it a penalty of a fine of up to £1,000 or imprisonment of up to 51 weeks, or both. 

On 28 April 2023, Baroness Hallett ordered the Cabinet Office to produce unredacted WhatsApp messages, diaries and notebooks kept by the former prime minister in relation to the Government's handling of the Covid-19 pandemic. The request came in the wake of The Telegraph's Lockdown Files, which revealed a tranche of approximately 100,000 WhatsApp's sent between Matt Hancock and other Government officials at the height of the pandemic.

Since then, the Cabinet Office and Baroness Hallett have been locked in a dispute regarding whether the order for disclosure was lawful – the Cabinet Office claiming that it was not lawful because the documents were "unambiguously irrelevant" to the scope of the Inquiry. Baroness Hallett however firmly believes that it is for her to determine the relevance or otherwise of the information ordered to be disclosed, not the Cabinet Office, and that any further refusal to provide the documents would be met with legal action. 

The waters appear to have been muddied further by the Cabinet Office's statement, following its application to revoke the entirety of the section 21 notice, that it could not hand over the WhatsApp messages or notebooks because it did not have them in its possession. This resulted in Baroness Hallett seeking a witness statement in substitution for the documents.

The current position is that whilst the documents requested have now been passed to the Cabinet Office in full and unredacted form by the former prime minister, the Cabinet Office has failed to provide them by yesterday afternoon's deadline. It informed the Inquiry that instead it will be seeking permission for Judicial Review of Baroness Hallett's order, on the grounds that  the Inquiry has stepped beyond its remit and there are important issues of principle at stake. 

In her earlier ruling on the Cabinet Office's application to revoke the section 21 notice, Baroness Hallett made it clear that, to discharge the Inquiry's Terms of Reference, she needs to pursue a large number of extremely diverse lines of investigation. Those may require her to seek information to give context to decisions made at the time or to evaluate certain allegations made. It may also involve factual matters that are not explicitly specified in the issues identified in the Terms of Reference, provisional scope documents for the relevant modules or lists of issues provided to Core Participants.

Whilst we await the outcome of the threatened Judicial Review proceedings, this debate has reinforced the need for any potential Core Participant to take steps as early as possible to search for, collate and retain material that may be relevant to the Inquiry. It may not be immediately 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, then those requests should, as far as possible, be responded to in an open, honest and candid way.

It remains to be seen whether the Cabinet Office's challenge will be successful given the powers remitted to Baroness Hallett pursuant to the 2005 Act, which includes pursuing the issues raised by the Terms of Reference as she deems appropriate. Nevertheless, an important legal precedent will no doubt be set in the process.

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