The Cabinet Office, R (on the application of) v The Chair of the UK Covid-19 Inquiry

A public inquiry may use its compulsory document-production powers to seek classes of documents which relate to matters within its terms of reference, even though the request may capture some irrelevant material. The investigatory and inquisitorial nature of an inquiry permits informed, speculative requests which may develop new lines of inquiry.

The presence of irrelevant documents does not invalidate a notice under section 21 of the Inquiries Act 2005. The recipient may apply under section 21(4), and the chair may inspect disputed documents, determine relevance and return material which does not relate to a matter in question. A chair acts rationally in issuing such a notice where the requested classes have a substantial connection with the inquiry.

The Cabinet Office sought permission to challenge a notice issued by the Chair of the UK Covid-19 Inquiry under section 21 of the Inquiries Act 2005. The notice required unredacted WhatsApp communications, diaries and notebooks relating to the UK Government’s response to Covid-19.

The Cabinet Office argued that the notice was ultra vires because it was not limited by express relevance wording and was likely to capture irrelevant material. It also argued that the Chair’s conclusion that the documents were potentially relevant was irrational. The Chair rejected the Cabinet Office’s application to revoke the notice under section 21(4). The central issues were the validity of the notice and the lawfulness of the Chair’s relevance assessment.

1. Permission and outcome. Permission to apply for judicial review was granted because the claim raised issues concerning the proper interpretation of section 21 of the Inquiries Act 2005. The claim was dismissed.
2. The Inquiry could exercise its functions only within its terms of reference under section 5(5). Those terms were wide but limited. Section 21(2)(b) permitted the Chair to require documents which related to a matter in question at the inquiry. The power had to be exercised subject to fairness.
3. The notice was valid. The requested WhatsApp groups and individual threads concerned ministers, advisers and communications about the Government’s pandemic response. The diaries and notebooks were very likely to contain information about Covid-19 decision-making. The fact that the request was likely to capture some irrelevant messages did not invalidate it.
4. Public inquiries receive greater latitude than parties to civil proceedings because they investigate matters of public concern, follow leads and may make informed but speculative requests. Some irrelevant material may therefore be caught by a lawful request.
5. The statutory scheme provided the appropriate safeguard. A recipient could apply under section 21(4) on the ground that it was unreasonable to require production of material which did not relate to a matter in question. The Chair could require disputed documents to be produced de bene esse, inspect them and return those found irrelevant. If the dispute persisted, the Chair could certify the issue to the High Court under section 36.
6. The Chair had not acted irrationally. The requested classes substantially related to the Inquiry’s lines of investigation, and the fact that two-thirds of the messages produced were relevant supported that conclusion. The Cabinet Office could pursue any specific relevance objection through section 21(4).

This was a first-instance judicial review. The Cabinet Office’s application under section 21(4) to revoke the notice had been rejected by the Chair of the UK Covid-19 Inquiry before the judicial review claim.