“Public inquiries are one of Britain’s only growth industries,” the Financial Times has suggested recently. Research from the Institute for Government demonstrates that there were 69 public inquiries launched between 1990 and 2017, compared with 19 in the previous 30 years. Several high-profile public inquiries are open at time of writing, including the Grenfell Inquiry, the Covid-19 Inquiry, and the Post Office Horizon Inquiry. The near-constant media coverage of the Covid-19 Inquiry, chaired by Baroness Heather Hallett, serves as a reminder of the role that public inquiries play in ensuring accountability and scrutiny. Each week of the Covid-19 Inquiry has painted a fuller picture of governmental decision making during the pandemic. The Covid-19 Inquiry has, however, demonstrated the shortcomings in governmental record-keeping and disclosure, particularly with respect to decisions which were taken via private communications platforms such as WhatsApp.
The term “public inquiry” can denote one of several types of inquiry which are discrete in law, including Committees of Privy Counsellors, Royal Commissions, and departmental inquiries, although arguably the most common form of public inquiry, and the type of public inquiry with which this post is principally concerned, is the statutory public inquiry, set up pursuant to the Inquiries Act 2005 (“the 2005 Act”). These inquiries can be established by a Minister in circumstances in which it appears that, under s.1 of the 2005 Act, “(a) particular events have caused … public concern, or (b) there is public concern that particular events have occurred”. As the High Court has indicated previously, the matters of public concern are identified by the Terms of Reference, which define the scope of an inquiry’s investigations. The powers of the inquiry can only be carried out within these Terms of Reference (see s.5(5) of the 2005 Act).
There are two primary mechanisms for the disclosure of evidence. The first is the making of a Request under Rule 9 of the Inquiries Rules 2006. Rule 9 empowers the inquiry panel to make written requests for evidence “to any person that it wishes to produce any document or any other thing” (Rule 9(2)). Following the making of a primary written request, the inquiry panel can request further evidence under Rule 9(3), including oral evidence. The second mechanism is that the Chair of an inquiry has the power, under s.21 of the 2005 Act, to compel testimony and disclosure. The Chair can require a person to attend to give evidence (s.21(1)), or to provide written or documentary evidence (s.21(2)).
s.21 is a strong mechanism for ensuring disclosure, because it is supplemented by s.35 of the 2005 Act. Under s.35(1), “a person is guilty of an offence if he fails without reasonable excuse to do anything that he is require to do by a notice under section 21”. Under s.35(2) a person will be guilty of an offence if, during the course of an inquiry, they do anything that is intended to have the effect of “(a) distorting or otherwise altering any evidence, document or other thing that is given, produced or provided to the inquiry panel, or (b) preventing any evidence, document or other thing from being given, produced or provided to the inquiry panel, or anything that he knows or believes is likely to have that effect.” An offence will also be committed, under s.35(3), where during the course of an inquiry “(a) [a person] intentionally suppresses or conceals a document that is, and that he knows or believes to be, a relevant document, or (b) he intentionally alters or destroys any such document.”
These disclosure duties play an important role in the scheme of the 2005 Act. A public inquiry is investigatory and inquisitorial in nature: these functions cannot be discharged in the absence of a comprehensive evidence base. Proper accountability relies on transparency and openness. The disclosure frameworks facilitate the achievement of accountability by ensuring that a full range of evidence can be put before a public inquiry, particularly in circumstances where disclosure may not be forthcoming (at the extreme, these are circumstances in which s.35 may have an important role to play). As a recent Commons briefing paper suggests, “the principal advantages of statutory inquiries are that they provide legal powers to compel witnesses to give evidence, provide legal safeguards, and can set limits upon the Government’s discretionary control of an inquiry.” The investigative efficacy of an inquiry, a precondition for effective remedial action to be taken following the inquiry, is dependent on these powers to facilitate the gathering and assessment of evidence.
The operation of these powers has come to the fore recently in the context of the Covid-19 Inquiry. A notice was made by the Chair of the Inquiry under s.21 of the Inquiries Act 2005 requiring the production of certain governmental communication. The request, relating to the period between 1 January 2020 and 24 February 2022, was for the unredacted WhatsApp communications recorded on devices owned or used by former Prime Minister Boris Johnson, and those on devices owned or used by Mr Henry Cook, an adviser, comprising exchanges between senior government ministers, senior civil servants and their advisers during the pandemic, as well as the diaries and notebooks used by Mr Johnson throughout that period. In response to the s.21 notice, the Cabinet Office made an application, dated 15 May 2023, under s.21(4) of the Inquiries Act, for the notice to be revoked. This application was declined on 22 May 2023 by the Chair of the Inquiry. The Cabinet Office then sought permission to apply for judicial review in respect of both the decision to issue the notice, and the ruling that the s.21(4) application be dismissed.
The Cabinet Office put their challenge on three grounds, set out at [34] of the High Court judgment. These grounds were, first, that the compulsory powers conferred on inquiries by the Inquiries Act did not extend to compel the disclosure of material irrelevant to the work of that inquiry; second, that a s.21 notice must be limited by reference to relevance; and third, that the conclusion that the all of the requested material was or might be relevant to the Inquiry’s work was irrational given the breadth of the Notice.
The High Court emphasised, at [52], that “regard must be had to the investigatory and inquisitorial nature of a public inquiry.” It allowed the application for permission, at [60], on the basis that the case “raises issues about the proper interpretation of section 21 of the Inquiries Act which should be addressed.” However, the High Court dismissed all three substantive grounds of judicial review. With respect to the first and second grounds, the court noted that although the Inquiry may exercise functions only within its terms of reference pursuant to section 5(5) of the 2005 Act, the messages, diaries, and documents requested were relevant to the terms of the Inquiry. The fact that some of the messages and documents which were yielded were irrelevant did not invalidate the notice (see [65]). Rather, s.21 was designed to reflect such a possibility: s.21(4) of the 2005 Act enables a party required to produce documents to make an application to the Chair stating that it is unreasonable, in the circumstances, to require him to comply. With respect to the third ground, the High Court held at [72] that the Chair of the Inquiry was not acting irrationally in issuing the notice on the Cabinet Office. This was because the Chair was “entitled to take the view that the documents requested related to a matter in question at the inquiry as identified in the notice and ruling. The fact that it is common ground that two thirds of the WhatsApp messages relate to a matter in question at the inquiry part proves that.”
Wider challenges relating to disclosure
The Covid-19 Inquiry illustrates governmental reluctance towards disclosure of communications which take place via instant messaging platforms, and the strength of the disclosure frameworks under the 2005 Act. The reluctance to disclose the WhatsApp messages when ordered to under s.21 is particularly worrisome given that the messages, many of which have been brought to the public attention by way of the Telegraph “Lockdown Files”, are of obvious relevance to the Terms of Reference of the Covid-19 Inquiry. That this was the case was apparent long before the inquiry, with a number of contemporaneous examples in the public domain of critical decisions with respect to the management of the pandemic being taken over WhatsApp.
Whilst this serves to demonstrate the strength of the s.21 mechanism, and the important role that it can play in ensuring the collection of relevant evidence, it remains the case that the utility of s.21 is dependent upon both the availability of the underlying records, and compliance with the s.21 notice by the subject of that notice. Changing governmental practice appears to pose novel challenges in both respects. With the BBC having reported that certain WhatsApp messages sent by the then First Minister Nicola Sturgeon during the COVID-19 pandemic were manually deleted, and reports of Westminster using automatic deletion functionality widely throughout the pandemic, it appears that the Covid-19 Inquiry may continue to experience difficulty with respect to disclosure. Reluctance, or in cases of deletion, inability, to adduce evidence of governmental decision-making reveals at one end an antipathy towards, and at the other end a worrying lacuna in, the public record, and one which, arguably, may place the government outside of duties imposed through the Public Records Act 1958, the Freedom of Information Act 2000, and the common law duty of candour. The issue has received some consideration in both the High Court and the Court of Appeal in recent years during the All the Citizens litigation, in which the legality of the government’s use of instant messaging technologies for official business was challenged. Joe Tomlinson and I have argued elsewhere that the High Court decision in All the Citizens interpreted the duties imposed under the Public Records Act in an unduly narrow way, by ruling that the Act imposed only a duty to make arrangements for the selection of certain records, not a duty to preserve records as such (see [55] of the High Court judgment, upheld on appeal). This restrictive reading of the legal duties which attach to the public record has worrisome implications for accountability: both retention and preservation are important to facilitate scrutiny of governmental decision-making.
The Covid-19 Inquiry provides a salient reminder of the need to review the current legal protections which exist to safeguard the communications which form a part of the public record. The public inquiry has the potential to be an effective tool for ensuring governmental accountability, but only where the underlying data is preserved. The prolific use of WhatsApp throughout the government has attracted criticism on the grounds of transparency, record-keeping compliance, and the limits it places upon governmental accountability. Governmental practice with respect to private communication has commanded a considerable degree of attention throughout the media. Whilst this is an area of changing practice and regulation, with a new Cabinet Office policy released in March 2023 which demonstrates a new internal approach to the use of these technologies, the Covid-19 Inquiry speaks to a pervasive culture which may require more than an updated communications policy by way of remedial action. Viewing the integrity of the public record as a condition precedent to the efficacy of public inquiries underscores the importance of review and development in this area.
Whilst the Inquiries Act 2005 has a framework for ensuring compliance with a s.21 disclosure notice, namely s.35, that provision cannot provide a robust safeguard where the underlying records are at risk at an earlier stage. If the underlying records are destroyed prior to the making of a s.21 notice (for instance, because automatic deletion functionality is enabled), the subject of the s.21 notice will not be in violation of s.35 in circumstances where they cannot adduce the evidence because they were long-ago deleted. This is because s.35 refers to activity which takes place during the course of the inquiry itself: destructive action taken before the inquiry does not fall within the scope of s.35. It is plainly correct that s.35 limits liability to the course of the inquiry; but it is also clear that supplementary protections are needed in this area to protect the inquiry process.
The judicial route to challenge through the All the Citizens litigation has ended, with the Supreme Court dismissing the application for permission to appeal. The present legislative framework means that, prior to the “selection of those records which ought to be permanently preserved and for their safe-keeping” (s.3(1) of the Public Records Act 1958), retention of governmental WhatsApp messages is regulated principally by the Cabinet Office policy governing non-corporate communications channels. Given the increasingly troubling pattern of government conduct with respect to decisions taken via WhatsApp, and the flagrance of the attempt to hinder the work of the Covid-19 Inquiry by withholding obviously relevant messages, a far more robust framework is warranted. A legislative framework could, and should, be devised to address the current lacuna in the protection of the public record. This legislative scheme ought to explain, in clear terms, when a duty would arise, and to which records it would attach. This legislation ought to remove discretion as to which types of record are preserved from the executive, so as to prevent the exploitation of retention duties for the purpose of evading scrutiny later down the line.
Cassandra Somers-Joce, Non-Stipendiary Lecturer in Law, Balliol College, University of Oxford.
(Suggested citation: C. Somers-Joce, ‘Public Inquiries, the Public Record, and Governmental Accountability ’, U.K. Const. L. Blog (20th December 2023) (available at https://ukconstitutionallaw.org/))
