SCOTTISH COVID INQUIRY INTERVENES AT JUDICIAL REVIEW BY CABINET OFFICE ON WHATSAPPS AND OTHER DOCUMENTS
30 JUNE 2023
PRESS RELEASE – BY SCOTTISH COVID BEREAVED
CO/2012/2023 THE CABINET OFFICE -v- CHAIR OF THE UK COVID-19 INQUIRY – JUDICIAL REVIEW
Judicial Review hearing before the Divisional Court, at the Royal Courts of Justice on Friday 30th June and Monday 3rd July 2023 with a time estimate of 1½ days.
Statement by Aamer Anwar – Lead Solicitor acting on behalf of the Scottish Covid Bereaved at both the Scottish & UK Public Inquiries.
We welcome the decision that the Chair of the Scottish Covid-19 Inquiry has been given permission to intervene in the judicial review proceedings that began today in London. Those proceedings are between the Cabinet Office and the Chair of the UK Covid-19 Inquiry which relates to the disclosure of relevant documents to the UK Inquiry, in particular the disclosure of WhatsApp messages, that we had sought disclosure of for all Scottish Ministers as well as that of Boris Johnson and others.
The Scottish Inquiry will have an opportunity to make written representations in today’s proceedings. The decision to intervene has been made after careful consideration of legal advice, and because the Cabinet Office’s challenge relates to an Inquiry’s powers to gather the information it requires to carry out its work.
As far as our clients ‘Scottish Covid Bereaved’ are concerned the court’s decision may have significant implications for the conduct of the Scottish Inquiry and may impact its ability to effectively fulfil its search for the truth.
It would be unacceptable if a court in London were to make a decision for instance requiring full disclosure of WhatsApp messages from former political leaders yet that power was not applicable to the Scottish Inquiry.
The requirement to produce evidence cannot have a different meaning in different parts of the UK. The interpretation of ‘relevance’ in the present judicial proceedings needs to be consistent across the jurisdictions of the UK.
The ‘Scottish Covid Bereaved’ find it distressing that the Inquiries need to defend their rightful demand for evidence from the Cabinet Office in court.
The mantra repeatedly heard from the UK Government to each ‘grubby revelation’ was that we should await the outcome of the UK inquiry- the families now know that was simply a ‘smokescreen’.
Despite an unequivocal request by Baroness Hallett, using her statutory power under Section 21 of the 2005 Act, for unredacted copies of a range of documents, consisting of WhatsApp messages, diaries and notebooks, that she considered to be potentially relevant, Cabinet Office took the view that it was permitted to redact what it judged to be “unambiguously irrelevant material” before they were provided to the Inquiry.
This request for the above materials by the Inquiry followed our submissions to the UK Public Inquiry Preliminary hearing on the 1st March 2023 when we appeared for the ‘Scottish Covid Bereaved’. On the 28th February it was revealed that 100,000 WhatsApp messages of the former Health Secretary Matt Hancock containing over 2.3 million words were leaked by the Daily Telegraph.
As we stated to the Inquiry on the 1st March, if what is contained within those texts was correct, it showed that Ministers of the State at the highest level were making decisions on handling the pandemic via WhatsApp. The allegations were deeply horrifying and upsetting for the families we represent and if true meant that the lives of thousands were considered ‘expendable’.
It was clear from the leaks that the PM, former PM, cabinet ministers, Chief Medical Officers, Scientific Advisors, senior civil servants, Newspaper Editors, Dominic Cummings and even Tony Blair can be found engaging in the messages, as well as discussion of relations with the Scottish Government.
At the preliminary hearing on the 1st March we submitted to Baroness Hallett, that anything less than full disclosure by all Government Ministers, would be considered as an attack on the integrity of both the UK and Scottish Public Inquiries.
On the 22nd May 2023 the UK Covid Inquiry refused the Cabinet Office’s application and renewed its demand for full and unredacted disclosure, with the threat of criminal sanctions if they fail to comply, this is unprecedented.
Failure to comply with the Section 21 Notice without reasonable excuse under section 35 of the Inquiries Act 2005 is a criminal offence, punishable on summary conviction with a fine not exceeding £1,000 and/or imprisonment for a maximum of 51 weeks.
Broadly speaking, the documents requested fall into two categories:-
- i)WhatsApp communications recorded on devices owned or used by the former Prime Minister Boris Johnson MP and also an adviser named Henry Cook, comprising exchanges between senior government ministers, senior civil servants and their advisers during the pandemic (including both group messages and also messages between individuals (or ‘threads’)).
- ii)Mr Johnson’s diaries for the same period, together with notebooks that contain his contemporaneous notes.
Baroness Hallett regards all these documents as being of significance as they contain information that is potentially relevant to Module 2 of the Inquiry, which is investigating core political and administrative decision-making by the UK government during the pandemic. The Inquiry has requested potentially relevant WhatsApp materials from a large number of witnesses, including key decision-makers, senior civil servants and government advisers.
No individual, no matter how powerful can be allowed to interfere with the pursuit of truth, justice, and accountability by this Inquiry, those who lost their lives to Covid-19 deserve nothing less. The Judicial Review launched by Cabinet Office is expected may last until Monday.
The families we represent welcome the unprecedented and robust response of the Chair to Cabinet Office and their failure of Cabinet Office to disclose all the material requested. The Government should be answerable to the people, there must be no hiding place for those involved in decision making.
