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It is sufficient for the government to challenge through judicial review the use of legal powers carried out by an investigation created, managed by an appointed judge, with terms of reference drawn up.
Why? Two broad reasons:
(1) There is no need to obstruct good governance (stop laughing) by publicizing communications of Ministers / Civil Servants that the government deems irrelevant.
(2) Concerns about the private communications and personal lives of government witnesses. This last point is quite strong in the grounds drawn up by the government’s counsel (here) with reference to Article 8 of the ECHR. (Yes, that stinks of government hypocrisy is a bit much but the show is fun enough that we wrinkle our noses and keep watching).
For all Sir James Eadie KC’s lengthy analysis, this is a direct battle of power: who/whom. Who is to determine whether the evidence is potential or not relevant to the matter being asked to be considered? The investigating judge thought, under the powers conferred by the statute, that he should decide. (The question is what will be disclosed, what will be published later. This fight is only about the first stage – what will be produced.) The government thinks that the witnesses (and government lawyers) should decide whether the material should be produced or not. . This made the obvious conflict of interest for him seem less troubling. Again, the recognition – let alone the avoidance – of a conflict of interest has never entered the head of this government in the past 4 years. If the relevant legal provision (S.21(4)(b) Inquiries Act 2005) says that the Chairman of the Inquiry decides, if someone refuses to produce, it also does not interfere with the government. Also they should consider”public interest in the information obtained by the investigation” (S.21(5)). Damn laws, eh!
The first reason can be quickly dismissed. There are a number of current inquiries (Post Office, blood contamination, Grenfell) that have released embarrassing communications from Ministers and civil servants. The government did not try to prevent it. It also did not try to prevent Mr Hancock from releasing WhatsApp messages of Ministers and civil servants for personal gain.
The second is more interesting and open. Most of the questions relate to what the Minister did or did not do by minister. Covid is different. The disease affects or has the potential to affect everyone in the country from the ruler down. The actions taken affect everyone in the country from the authorities, every business and organization and, most importantly, in general. and personal actions from Ministers and civil servants. The restrictions imposed are an unprecedented (in peacetime) attack on personal freedom and life, an attack that (as I have said here) on “way arbitrary, cavalier, confused and oppressive” with little or no scrutiny, Parliamentary or judicial. As a result, there is not much private life left, where we can decide who to see and when, even in our own homes. Families were divided. A large part of our private lives is criminalized. Are the Ministers and staff also following the rules? Do they know? Did he know he was applying too? Are they trying to obey? Or do they think that rules, laws and guidelines are something they do for others?
How convenient is it for the government to argue that concerns about the privacy of Ministers and civil servants should prevent the electorate from learning exactly how these restrictions are and their own attitudes and compliance? More broadly, how convenient is it for future governments to be able to use “the right to private life” reason is a way to limit questions about the actions of government officials, elected or not.
There are two consistent threads underpinning everything the government has done since 2019. The first is a I am a country approach to the government, the belief that the rules for small and important people should be allowed to act as they wish. “We are not all together” is his motto.
The second is executive aggrandisement. Attacks on judicial review, on judges, disdain for the proper supervision of the Parliament, the Minister refuses to attend the Select Committee, preference for rules by Ministerial Decree, a curbs on the right to protest, weakening of independent bodies such as the Electoral Commission, its cokey hokey with the right human nature – all this shows the executive is determined to accrue more power for himself, weaken the power of independent bodies and limit or eliminate the ability of others to examine, challenge and continue responsibility. Seeking to prevent the head of the inquiry from determining what material is suitable for the inquiry into how and why the government criminalized a large part of our lives by this statement infringes on the personal life of Ministers and civil servants shows some chutzpah. But also everything is in line with the actions of this government.
Whether Johnson is also playing his own game – from the anger reported a few weeks ago about personal details that were revealed to the current total insouciance and the desire to give everything (except for the material that no longer exists for 15 important months) – is a secondary, if entertaining, diversion. Of course, if the government’s challenge succeeds, we will see them use this in a long battle with the Parliamentary Standards Committee. And if it doesn’t – and it’s revealed that everyone in the government and the civil service ignores or despises the rules they’ve made for us – well, Boris won’t look bad and he’ll get his revenge on those who kicked him out.
Executive aggrandisement. That’s what the Tories are for. “Vote for us and we will take back control. From you.” It is impossible to appear on the bus at any time. But still accurate.
Cycle free
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