Lawyer Gareth Roberts explains how Dame Hallet's inquiry has the full force of the law and is not a constitutional nicety the former Prime Minister can wriggle out of
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Dame Heather Hallett, chair of the UK COVID-19 Public Inquiry, is not a woman to be messed with
Daughter of a beat Police officer who rose up the ranks to become an assistant chief constable, she had a reputation as an outstanding barrister and a thorough and fair High Court Judge. She now sits on the Cross-benches in the House of Lords, and when Boris Johnson appointed her to chair what will almost certainly become the most wide-ranging public inquiry in British history, his decision was acclaimed as a good one.
Boris Johnson’s government also set the scope and terms of the inquiry – they include the UK’s preparedness and response to the pandemic; whether the UK had the proper resources to deal with a pandemic; and if the impact of the pandemic was disproportionately felt by certain sectors of the British people.
In simple terms, it will ask whether steps could have been reasonably taken that may have prevented some of the estimated 225,000 deaths that stemmed from COVID in the UK and what lessons can be learned for future governments.
The inquiry team has been recruited from civil servants and lawyers, with independent barristers selected from an open recruitment process to assist in the acquisition and assessment of what will almost certainly amount to many millions of pages of documents and testimony.
Dame Hallett will not want to leave any stone unturned, and rightly so, the pandemic impacted on every element of life in the UK, no one escaped it and the effect of the public health policies that were put into place under the guise of keeping us safe.
In terms of the law, unlike some other inquiries that are set up with the sole intention of making a tricky political issue disappear (such as the Sue Grey inquiry into ‘Partygate’ which was led by a civil servant or the previous covid inquiry which looked at the role of Dominic Cummings, which was led by MPs) the UK COVID-19 Public Inquiry will take its legitimacy and force from an already established statutory framework, that is the Inquiries Act 2005.
The Inquiries Act 2005 was enacted in response to a number of public inquiries - such as the Saville Inquiry into the ‘Bloody Sunday’ shootings, the Scott Report into the ‘arms to Iran’ scandal of the 1990s and the Chilcott Report which considered the invasion of Iraq - which were criticised for being too slow and overly opaque in terms of procedure and rules.
The statute gives the Chair of a properly constituted Public Inquiry the weight of the criminal law; section 21 gives the Chair the power to compel a witness to testify or produce any relevant documents, whilst section 35 states clearly that a failure to comply with a notice under section 21, can be punished with a fine or a prison sentence up to 51 weeks.
An individual who fails to comply with a s.21 notice can claim that for them to produce such a document may be ‘unreasonable’, but the validity of that assertion will be determined by the Chair themselves.
Dame Hallett has issued a s.21 notice requiring, among others, Boris Johnson to produce all emails and messages, including WhatsApp messages that he sent and received from January 2020 onwards.
The Cabinet Office, on behalf of Johnson, has stated that they will only produce redacted messages. Dame Hallett has refused this offer, the messages in their entirety, she says, go to one of the live issues for her inquiry which is whether the Prime Minister and his government were potentially distracted by other matters to adequately deal with the pandemic.
The potential political ramifications of Boris Johnson’s unredacted WhatsApp messages being disclosed to anyone are huge – Johnson’s reputation for having a loose tongue and clumsy attitude towards the normal parameters of diplomatic discourse is well known, of course, he doesn’t want his unguarded thoughts and musings making their way into the public arena.
But, although those who use WhatsApp may have some sympathy for any individual who is ordered to disclose their entire conversation history, the reality is that Dame Hallett’s Public Inquiry into Covid is significantly more important than the sensitivities of Boris Johnson or the Conservative Party, whilst the principle, in general, may also be profound.
With regard to Johnson, he was the Prime Minister throughout the pandemic, he was responsible for the framing of public policy and an objective analysis of the successes and failures of his administration and policies during Covid is absolutely vital, not least of all to the families and friends of those died of Covid; whilst, as scientists are already warning that there is every likelihood that Covid will not be an isolated public health crisis, any guidance for future generations is essential.
When one considers this, then it is easy to see why Dame Hallett wants the disclosure of everything and why that order is entirely reasonable.
A Tradition of Lawlessness
Boris Johnson has responded to these events by parting company with the lawyers who were appointed to represent him by the Cabinet Office, which is almost certainly a sign that he was unhappy with the advice he was given by them, advice that probably consisted of them telling him that he must ‘disclose everything, and trust that Dame Hallett and the inquiry team will deal with it sensitively and properly.
That Johnson doesn’t want to comply with that order brings me to, perhaps the other important aspect of this stand-off, the broader issue of the separation of powers and the trend amongst some politicians to put party politics before good and proper governance.
In recent years we have seen a creeping desire by UK politicians and in particular by Boris Johnson’s government, to place themselves above the constitution – more times than ever before, Ministers have either defied or threatened to defy domestic and international law in their attempts to force through their political programme. The more that is allowed to continue, the greater the chances of the UK slipping into, at worst, a state of authoritarianism or at best, a democracy where the public can no longer trust that the excesses of politicians will be curtailed by the law.
That Boris Johnson sees himself as being impervious to a demand from a High Court Judge and Chair of a massively significant Public Inquiry is another example of modern politicians failing to understand and adhere to the separation of powers and understand that they are not above the law.
Conversely, although the idea of peeking into Boris Johnson’s private WhatsApp messages is an attractive one, it is also important that he as a public figure can be confident that the Public Inquiry will deal with his messages sensitively and limit themselves to those that are clearly relevant to the Inquiry rather than the more salacious conversations that would be dynamite in terms of political gossip but have limited value in terms of actual public policy.
The Conservative party have already suggested that they don’t trust anyone who is potentially unfriendly towards them and their political ideology and has used this often artificial stand-off between them and servants of the state, such as Whitehall Mandarins and those they describe as ‘lefty lawyers and judges’ as an excuse for the failure of some of their policies particularly on Brexit and immigration. The widespread leaking of irrelevant messages would only add to the Tories' feeling of paranoia and further undermine the relationship between elected politicians, professional civil servants and the electorate as a whole.
The UK COVID-19 Public Inquiry, therefore, is absolutely right to demand to see all messages and documents, and Johnson and his colleagues must not be allowed to refuse those demands, but, once the Inquiry takes possession of those documents, tempting though it would be to turn them over and let Johnson and the Tories sink themselves with their own words, Dame Hallett and her team, must resist this temptation and ensure that professional and focussed consideration of the material prevails, because the importance of the COVID-19 Inquiry goes well beyond party politics.
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