In a judgment handed down by the Divisional Court on 6 July 2023 in R (Cabinet Office) v Chair of the UK Covid-19 Inquiry  EWHC 1702 (Admin), the Cabinet Office’s challenge to a notice issued by the Chair of the Covid-19 Inquiry under section 21 of the Inquiries Act 2005 was dismissed. The notice required the disclosure by the Cabinet Office of a large number of WhatsApp groups and message threads of the former Prime Minister, Mr Johnson, and one of his advisers, Mr Cook, as well as Mr Johnson’s notebooks and diaries. The Cabinet Office had sought to redact this material on relevance grounds. The notice required their disclosure unredacted.
The judgment reiterates that under the statutory scheme, an inquiry’s functions are limited by the scope of its terms of reference, but that its powers to seek documents relating to those terms of reference are broad extend beyond those available in civil litigation. A notice issued under the coercive power in section 21 is entitled to seek classes of documents and is not invalidated if the documents returned include ones which are clearly irrelevant.
However, the judgment gives important guidance on the entitlement of a recipient of such a notice to make an application under section 21(4) to vary it in relation to documents said to be irrelevant. The Divisional Court explained that an inquiry may be entitled to see the documents in question on a ‘without prejudice’ basis, to take a decision on relevance, before they are formally provided to the inquiry. If they are accepted by the inquiry to be irrelevant, they must be returned to the provider.
The judgment may be read here.
Christopher Knight acted on behalf of the Cabinet Office, instructed by the Government Legal Department.