Boris Johnson’s evidence in the Covid-19 Inquiry and the impact on freedom of information
Boris Johnson, the former Prime Minister, is no longer a Member of Parliament (MP). On Friday, 9th June 2023, he stood down after seeing a draft report of an investigation into whether he had lied to Parliament.
The report, compiled by the Privileges Committee, is due to be published shortly.
Johnson’s WhatsApp messages and diaries have also been the subject of news columns recently. The Covid-19 Inquiry has requested evidence as part of their investigation into the Government’s response to the pandemic. Although Johnson is no longer an MP, he is still required to provide evidence to the inquiry if requested to do so.
It is the question of what, if anything, can be disclosed that has caused a stir in the news and led to a judicial challenge by the current government.
The Inquiries Act 2005 (the Act) was passed by the Blair government in order to provide for independent statutory public inquiries. It has previously been used to set up inquiries into Grenfell Tower and the Manchester Arena bombing.
Using powers set out in the Act, Johnson set up the inquiry on 28th June 2022 whilst he was still Prime Minister. Chaired by the Right Honourable Baroness Heather Hallett DBE, the inquiry will, according to its terms of reference:
“… examine, consider and report on preparations and the response to the pandemic in England, Wales, Scotland and Northern Ireland”.
The Act provides inquiries with far-reaching powers. The most relevant of these are as follows:
section 17: the procedure and conduct of the inquiry are for the chairman to direct
section 21: the chairman has the power to require the production of evidence
On 28th April 2023, Baroness Hallett issued notice to the Cabinet Office to provide evidence. It is the disclosure of this evidence that is the subject of press attention and a legal challenge.
In her letter to the Cabinet Office, Baroness Hallett asked for the disclosure of unredacted WhatsApp messages between Johnson, Henry Cook (former senior advisor to the Prime Minister on Covid-19) and 41 other individuals.
The list of individuals included Professor Sir Chris Whitty, Dominic Cummings, and Simon Case as well as members of Johnson’s cabinet. The letter also asked for Johnson’s notebooks and diaries.
At the core of this matter is the question of relevance. What is relevant to the inquiry and, most importantly, who decides what evidence is relevant? The Cabinet Office has launched a judicial review to get a clear answer to both of these questions.
On the one hand, the Government’s lawyers are arguing that it is for them to decide which documents, of those requested by the inquiry, are relevant. They argue that they can exclude or redact anything that is not “unambiguously relevant”.
The lawyers for the Covid-19 Inquiry argue that the terms of reference, agreed with the then government, are broad. They contend that this, coupled with the powers outlined in the Act, suggest that Baroness Hallett’s request is a fair one and backed by statute.
Under the constitution, many of the actions of the executive and legislature are governed by, in some cases, centuries-old convention. Some have argued that the disclosure of the documents goes against two, long-established traditions of government: the privacy of decision making and the collective cabinet responsibility.
Traditionally, conversations between ministers, their aides, and civil servants have been subject to a degree of privacy. This allows policymakers to make effective decisions without the fear that their opinions will be shared with the wider public until the policy decision has been finalised ready to be scrutinised.
Similarly, collective cabinet responsibility is another long-established principle. It allows for ministers to have free and frank confidential conversations between themselves before coming to a collective decision that then becomes public.
The request from Baroness Hallett is unprecedented in terms of its sheer scale. Never before have WhatsApp communications between government officials and MPs been the subject of an investigation of this nature.
Government lawyers have argued that the full disclosure of the WhatsApp messages and notebooks will set a dangerous precedent in relation to freedom of information that will break with tradition and weaken governments of the future by not allowing them to make decisions in private.
Conversely, if the court finds for the government, another precedent could be set, which may have a long term impact on the freedom of information. Put plainly, the Government is arguing that it is for a witness or evidence-holder to decide what is relevant to an inquiry. If the court finds that the Government has acted correctly, does it then become easier for this government, or future governments, to redact information that they deem to be irrelevant? It would appear so.
Relevance is, to an extent, a subjective test. The outcome of this judicial review will help to decide who has the right to decide what is and isn’t relevant. Whatever the result, there will definitely be implications for this government, future governments, and any public inquiries set up under the Act.
Parallels can be drawn between the disclosure of this evidence and disclosure under the Freedom of Information Act 2000 (FOIA). Under the FOIA, information that relates to government policy or that could be prejudicial to the effective conduct of public affairs may be exempt from disclosure. Government departments can use these exemptions for:
information relating to the formulation or development of government policy;
communications between ministers;
advice from the law officers; and
the operation of any ministerial private office.
Whilst Baroness Hallett’s request for evidence has not been made under the FOIA, the result of the judicial review could have an impact on the use of these exemptions in the future. As well as the potential implications for governments in relation to inquiries, there may also be broader implications for the public’s right to access information held by the Government under the FOIA.
Contact Barney to discuss this further.
