- Statement
- 8:28 pm
- My Lords, the Statement on which we are about to take questions concerns matters which are currently before the courts. The Speaker granted a waiver of the sub judice rule in the House of Commons yesterday to allow these matters to be raised on the grounds of their national importance. The Lord Speaker has also agreed to waive this House’s sub judice resolution, both during proceedings this evening and on an ongoing basis.
- The following Statement was made in the House of Commons on Monday 5 June.
- “I am grateful for permission to make a Statement on the Government’s decision to seek a judicial review on a specific point of law relating to the public inquiry on the Covid pandemic. The whole House will recognise that, on any issue that is before the courts, a Minister needs to act and speak with extreme sensitivity. We fully respect the difficult role that judges need to perform, and I appreciate that the conventions of this place are designed to ensure that we do not make their role—the sober and detailed consideration of facts of law by those qualified to do that—any harder. I am sure that the House will respect the fact that, for those reasons, it would be inappropriate for me to debate the fine details of this case.
- Notwithstanding that, we felt that there was very real public interest in the broader issue of why the Government would take the unusual step of asking for a judicial review on a point of technical difference between the Government and an inquiry that the Government have established. That being the case, we felt, as ever, that the matter should be raised in this House.
- The Government fully support the vital work of the inquiry, which seeks to establish the facts, and the lessons to be learned from the response to the pandemic. It is right that the inquiry on Covid-19 be comprehensive and rigorous. It is being chaired by Baroness Hallett, an eminent former Court of Appeal judge. In this dispute, the guidance of the courts is sought on a narrow and technical point of law. It does not touch on the Government’s confidence in the inquiry. Nor does it in any way affect the Government’s intention to continue full co-operation with the inquiry. To date, the Cabinet Office alone has submitted 55,000 documents to the inquiry. We will continue to provide any and all Covid-related materials requested.
- We are grateful for the work being undertaken by the inquiry chair and her team. The pandemic was one of the most difficult times for our country in living memory—so many people lost so much. The inquiry’s task is challenging. It must have the support of us all in conducting its work, and in bringing forward its conclusions in a timely way. The core point of principle that is raised is whether there are limits to the power of the inquiry to compel information and documents to be produced.
- Specifically, the question raised by the compulsory notice under the Inquiries Act 2005 that was served on the Cabinet Office is whether the inquiry has the power to compel production of documents and messages that are unambiguously irrelevant to the inquiry’s work, including personal communications and matters unconnected to the Government’s handling of Covid. The notice received is bound to include a range of material of that nature. It covered a two-year period and a range of documents, including WhatsApp messages relating to my right honourable friend the Member for Uxbridge and South Ruislip, Boris Johnson, and a former special adviser.
- I reiterate that all material that is relevant to the inquiry’s work has been and will be provided to the inquiry; likewise, material about which there might be real questions about its relevance to that work. There is no question but that all internal discussions on Covid, in any form, requested by the inquiry will be made transparently available to it. What has been redacted, and so not provided in response to the notice, is material that the Cabinet Office considers to be clearly and unambiguously irrelevant to that work. That material includes, for example, communications about purely personal matters and about other aspects of the Government’s policy and work which have nothing to do with Covid. It is that material, and that material alone, that is subject to judicial review. Honourable Members wanting to see more detail of our concerns may be interested in our letter to the inquiry, sent last Thursday, which is available on the Government’s website and a copy of which I will deposit in the House of Commons Library.
- As in any such dispute, there are two sides to this debate. Baroness Hallett, as I have said, is a highly respected senior judge and inquiry chair in whom the Government have great confidence. The inquiry has made relevant statements regarding the Government’s position on its website, to which I draw the House’s intention. The inquiry will no doubt be making further statements. Above all, as I understand it, the inquiry believes that it should be for the inquiry alone to judge the relevance of the material requested. We respect that position and, as I have indicated, the Cabinet Office has provided material about which there might be a dispute.
- Where we differ with the inquiry is only in relation to material that is considered to be clearly and unambiguously irrelevant, and that is considered to be so after careful checking. This is a genuine and sincere difference of opinion on which we are seeking the guidance of the courts. I do, however, want to assure the House that the Government have explored with the inquiry ways to bridge the gap between those sincerely held but differing views, and we will continue to do so. We appreciate the patience and good will shown by the inquiry as we have sought to identify a mutually acceptable solution.
- We have also sought to assure the inquiry on the nature of the redactions of non-relevant material from the information requested in the Section 21 notice and how those would operate. The process deployed to ascertain and redact unambiguously irrelevant material from that information is as follows. Witnesses are required to identify any material that may contain potentially irrelevant information to the inquiry, with guidance from the counsel team supporting them. That is then reviewed by the counsel team, who identify any material that is unambiguously irrelevant. The counsel team discusses it with the witness in case there is any context or detail of which they may not be aware. The review by the counsel team includes the assessment of a King’s Counsel instructed by the Cabinet Office. No decision to redact material as unambiguously irrelevant has been or will be taken by a witness acting alone.
- These redactions will all be kept under review such that if the scope of the chair’s inquiry changes, she will be able to receive the material that becomes potentially relevant. I would like to reiterate that this is a matter of legal principle that will have an impact on this Government and all future Governments. This is absolutely not related to one individual’s personal information.
- In conclusion, I would like to again issue my thanks to the inquiry chair and her team for the important work they are undertaking. The Government have only embarked on this course after serious consideration. It is with regret that we felt the judicial review had to be brought forward. We are very aware that it is sometimes in the nature of government that difficult decisions have to be taken, knowing that in the short term they may of course be criticised or misinterpreted, but which we believe are important for the country in the longer term. Whereas it is entirely right that any material in any way related to Covid is available to the inquiry, we believe there is value to challenge and debate inside government being unclouded by the knowledge that other discussions could be disclosed regardless of their relevance to any future inquiry. As such, we believe this request for guidance is necessary.
- Finally, I would like to make it absolutely clear to all those directly affected and bereaved by Covid that the Government will do absolutely nothing that we believe impedes the vital work of the inquiry, to give them the answers they deserve and that the country needs to ensure that we learn the lessons of Covid. I commend the Statement to the House.”
- 8:29 pm
- My Lords, before I start, I will just emphasise the point made by the noble Lord that it is unusual when business says“at a convenient time after 7.30 pm”to be starting closer to 8.30 pm. I wondered whether the Government were trying to delay it because the Minister did not want to answer questions.Where I suspect the Government and I would agree is that Ministers, politicians and officials need private time and space to explore and discuss issues as they develop policy, but that is not what the Government’s legal action in this Statement is about. There were basically two reasons why the Government launched this inquiry into the handling of the Covid pandemic. The first was to learn lessons from what was done well, what went wrong and what changes could be made for us to be better prepared and to better respond to such events in future. For there to be trust in government for any similar event in future, we must ensure we are able to respond effectively.Secondly, the inquiry was about trust, responsibility and accountability. Many questions have been raised since; for example, about preparedness beforehand, the supply and purchase of PPE and the disputes the Government had about scientific advice, and the view from the Government was that an independent, judge-led inquiry was the most appropriate way forward. To this end, the Government chose a highly regarded former judge, the noble and learned Baroness, Lady Hallett. I am giving some background on this because in your Lordships’ House we do not now benefit from hearing a Minister read a Statement out, so it is somewhat awkward for those listening to know what is going on. Normally, I would just have questions, but I think it is important to set on record some of the scene, which should be the Government’s job.The Government chose a highly respected former judge, the noble and learned Baroness, Lady Hallett, but what appears to be the case—I would be grateful for the Minister’s comments on this—is that the terms of reference for that inquiry and the timescale in which it was to be expedited were not fully formed and there is now a dispute between the Government and the inquiry. We now have a rather embarrassing position where the Government are seeking a judicial review to, in their own words, test
- My Lords, what a dog’s breakfast this is when a Government who spend so much time complaining about other people using judicial reviews stand before us trying to justify their decision to use the same legal process to prevent an inquiry that they set up having access to communications sent by members of that very same Government on matters of significant public interest.The Government’s case appears to be that full disclosure would be unfair because their communications are all over the place, mixing business and pleasure with God knows what in a soup of uncontrolled WhatsApping, as the noble Baroness, Lady Smith of Basildon, has already flagged. Yet this is a problem entirely of their own making. While the pandemic was not something that anyone could have foreseen, it was entirely predictable that the way this Government have been working would lead to problems. If this were not happening with the Covid inquiry, we would have arrived here sooner or later with some other investigation into government decision-making where disclosure of Ministers’ messages was necessary.Does the Minister accept that this situation could have been avoided if her Government had shown more discipline in managing government communications from the outset? Does she agree that it was not inevitable that we would end up in this mess—that this could have been avoided through having clear rules such as using different devices for home and work communications, as is common in many other sectors? Can she indicate whether all Ministers are now following improved protocols so that we will not repeatedly fall into this same situation, as there are surely other areas of government policy that will be challenged either in the courts or through future public inquiries?I am sure that all of us find it hard to keep track of which communications channels we use for which purposes, and it can of course be convenient to mix them up, but the business of government is special and communications about decisions by government that affect millions of people have a particular importance. This importance means that Ministers of the Crown and those working for them should be held to a higher standard, and they have more resources available than most of us to help them meet those high standards.
- I start by agreeing with the noble Baroness, Lady Smith of Basildon, that it is difficult to answer questions when we have not had the benefit of the Statement. It was a long Statement in the other place.