8. Submissions on Behalf of Disabled People’s Organisations by Mr Friedman

Mr Friedman: Good afternoon, my Lady. I’m just waiting for the furniture to be moved around. With gratitude. And perhaps I should thank everyone for the work that’s been done on this building, because I’ve noticed the change.

Thank you.

Lady Hallett: We haven’t properly equipped us with lecterns by the sounds of it, Mr Friedman.

Mr Friedman: I’m told it’s going to happen.

My Lady, thank you.

I represent the Disabled People’s Organisations, or the DPO, and they are Disability Rights UK, Disability Action Northern Ireland, Inclusion Scotland and Disability Wales.

Given the matters under discussion today, particularly Cabinet Office disclosure, it’s important to recall why this Inquiry is valuable to everyone, why it is valuable to our clients, and consequently why the stance of the Cabinet Office is so troubling.

This Inquiry is like no other because Covid involves us all. No one and nothing is the same as before. The harm done is still felt. The harm to some is far worse than others. And from the Inquiry, people want truth, humility where it is due, and rigorous lesson learning for the inevitable next time.

For those particularly impacted upon and marginalised, like disabled people, they want change. An Inquiry of this nature constitutes an exceptional form of open investigation and learning. We agree with what you have said before and what Mr Keith King’s Counsel has said today: nothing else will cumulatively be able to draw together evidence, test it in public, mandate real accountability, involve core participants and create a legacy of fact-finding and recommendations like this Inquiry can. Indeed, the work envisaged by the terms of reference and provisional list of issues will empower the public at large to understand and say more about Covid in the future. All that is why, although Inquiries are commissioned by governments, they are for the people.

I can deal with why this Inquiry is so valuable to Disabled People’s Organisations, or the DPO, by focus on the provisional list of issues and two specific matters. The first is vulnerability; the second is resilience.

On vulnerability, my Lady has repeatedly expressed your determination to investigate the consequences of inequality, and to that end you have described it as vital for Module 2 to examine the impact of decision-making on those who, in your words, are at risk or vulnerable or marginalised. The DPO strongly favour this approach and want to do all they can to support it.

It is therefore welcomed that the provisional list of issues refers to the category of “vulnerable and at-risk groups” in several places. However, whereas the draft list appears to take the definition of these terms as a given, the evidence suggests that the concept of vulnerability was constructed over time, moving incrementally from a medical and shielding focus to a broader social and economic focus. How and why the vulnerable are recognised, defined and distributed to is, we respectfully submit, a key part of this module. So, again, it increases the value of this process that we hear that your counsel team this morning are actively engaging with that particular point.

My Lady, in the Covid response, the opposite of vulnerable is not invulnerable, it is resilience, a word that is frequently used in government documents and forms part of the title of Module 1. However, one of the costs of focusing on groups as vulnerable is that it overlooks that they are marginalised precisely because they lack the assets, human, social, economic and institutional, to enable their resilience. That is why we have submitted that the consequence of any failure to plan for pre-existing inequalities identified in Module 1 is worthy as a Module 2 issue in its own right. All modules after Module 1 should serve to deepen the Inquiry’s appreciation of what resilient society planning requires and how and why it was missing prior to Covid-19.

My Lady, that is the context for the Cabinet Office objections to full and transparent disclosure. We support and endorse the Inquiry’s approach to date, and say this: although the formal applicant seeking to withhold disclosure is the Cabinet Office, their tactics are sanctioned by this government, the Prime Minister, and his ministers.

As of today, we know that the government are creating three problems that threaten the Inquiry’s ability to get to the truth.

The first problem concerns the Cabinet Office wanting to be the judge in its own cause as to what is potentially relevant and what is not.

The second problem is unacceptable delay. Anyone remotely informed about the governance of Covid-19 will know that WhatsApp messaging played an important role. The Inquiry determined that it wished to see the messages as well as notebooks and diaries, and yet it took from 3 February 2023 to close of business on 26 May for the Cabinet Office to disclose that they did not have core documents concerning Mr Johnson.

The third problem, which based on this morning may or may not go away, we don’t yet know, is that government has been expressly willing to give the Inquiry the Cabinet minutes but has been saying up to now that they would not allow those minutes to be made public to core participants and the public at large. We are told they have cited the political, not legal principle of collective Cabinet responsibility.

Taking the three problems in turn, for reasons detailed in our written document, we say the government is wrong in law and its approach is ill judged. Based on the update this morning, let me summarise where we understand things to have got to.

First, on the production of the full specified documents, the Inquiry, as investigator and fact finder, has the power under section 21(1)(b) of the Inquiries Act 2005 to demand any documents that “relate to a matter in question at the inquiry”. The word “relate” is a broad term, certainly synonymous with a power to mandate materials that the Inquiry considers potentially relevant, and when the scheme of the 2005 Act is read as a whole, likely broader than that.

Dominic Cummings, Isabel Oakeshott, Matt Hancock and the Sue Gray report have all informed the public how important WhatsApp messages are going to be to this Inquiry. If multiple matters of state and policy were communicated outside the discipline of formal minutes and public recording duties, then the Inquiry needs to see the full picture.

But it goes further than that, what were once conversations in the corridors of power, not contained in any minutes or formal records, are now recorded. It is through WhatsApp messages that disabled people know that in November 2020 Matt Hancock allowed the whips to threaten funding for a learning disability hub if the MP for Bury North did not vote with the government on the tier system.

Instant messaging can show bias that other sources of evidence conceal, and those who reviewed these materials for relevance can themselves be prone to unconscious bias, especially if they do not appreciate certain forms of discrimination in others, or understand the full panoply of issues like the Inquiry will.

It would be wrong for a chair to allow any party to redact documents before the Inquiry has seen them, and no reasonably informed person could respect an Inquiry process that allowed that to happen. The idea that the Cabinet Office, as a state provider of documents, should enjoy some privileged status in this regard is neither recognised in the statute nor conceivable in a module where state decision-making is under scrutiny. No irrecoverable damage is done to privacy or other interests by providing unredacted documents, as the Inquiry will and must consider itself redacting documents that remain unambiguously irrelevant and strictly personal.

As understood from my Lady’s ruling, analogies with criminal and civil proceedings in this context are plain wrong, because when trial parties dispute relevance, the judge will inspect the documents. The stance of the Cabinet Office is even more flawed, because it overlooks that the Inquiry is the investigator as well as the fact finder. In no other investigatory process known to UK law would a party under investigation be allowed to redact documents for relevance as they go out the door.

Finally on this point, as the case law establishes, it is no good creating a dedicated expert tribunal under a senior judicial figure, with its specialist counsel and solicitors, at least two of whom, Mr Keith and Mr O’Connor King’s Counsel, have been dealing with disclosure out of Cabinet and other sensitive parts of the government all their working lives, and then suggest that the document provider knows better.

Second problem, we are bound to say there has been improper delay in communicating to the Inquiry that the Cabinet Office did not have documents relating to Boris Johnson. The story continues to unfold, with the statement from the Cabinet Office, which my Lady ordered but the Cabinet Office has put onto their own website. It’s dated 1 June. That statement catalogues serious mistakes. There is no justification for failing to tell the Inquiry from 3 February until 26 May that they did not have the documents, that Mr Johnson was refusing to release them or they had not secured them long ago.

Instead, the principal phone of Mr Johnson’s premiership, the phone he used until May 2021, and any messages on it have been entirely unaccounted for until this week.

The third government problem is, as I stand, the government’s still threatened opposition to full publication of documents such as the Cabinet minutes. Yes, their application has been made, but as things stand, that further threatened government-sanctioned delay and major challenge to the effectiveness of this Inquiry has not unequivocally been taken off the table. Until it is, we can only make a plea in the interests of all that the government pulls back clearly and once and for all.

Again, we have set out fuller reasons in writing in the hope that you will not need them and we will never have to argue them. But in summary, because time is short, and it’s important for the public to know what’s been going on, we do want to say why reassurance to you by the government on this issue is so important. The interest in maintaining the candour of Cabinet discussion at the time difficult decisions are made cannot rationally or justly prevent publication of such decisions in an Inquiry commissioned to study those very decisions. That is why we have cited the date of the government’s decision to commission this Inquiry. It was in May 2022 when the issues now under investigation were no longer live and the benefit of confidential discussion had passed. However, it’s the overall context that causes us to be so emphatic in our opposition.

The Inquiry contains within its terms of reference, created by the government, an express aim to “consider how decisions were made, recorded and implemented”. It is a provisional outline of its scope that “will pay particular scrutiny to the decisions taken by the Prime Minister and the Cabinet as advised by the civil service, senior political, scientific and medical advisers and relevant Cabinet subcommittees”, and the Inquiry has just ruled, in disposing of the section 21.4 application, that there is “a need to investigate allegations that have been aired publicly regarding agreements between members of the government”.

That cannot be done in a manner that satisfies public confidence if collectively agreed Cabinet statements go public whilst important but potentially embarrassing disagreements between ministers go unpublished.

My Lady, the rest of our submissions for today are in writing. I want to say one more thing about why this Inquiry is like no other and its diminishment cannot be tolerated. Unlike in any other legal proceedings that the Cabinet Office seeks to compare it to, the wisdom of government policy and the competence of our governors, especially the Prime Minister and the Cabinet, are directly under scrutiny in this Inquiry. It cannot be forgotten that the Cabinet sat at the apex of what my colleague Adam Wagner has called the Emergency State.

There is an enhanced need for this Inquiry to scrutinise Cabinet decision-making and the mindset of ministers, given that the law-making powers provided under the Public Health Act 1984 granted so much power to the Executive above and beyond the scrutiny of both Parliament and the courts.

The Cabinet Office issues still at stake today therefore lie at the heart of the intended scope for Module 2, from WhatsApp messages to diaries to minutes.

It would in fact undermine the very principle of Cabinet responsibility if the opportunity was missed to publicly examine how the government worked in this exceptional and fragile period of crisis.

My Lady, thank you.

Lady Hallett: Extremely grateful, Mr Friedman, thank you very much indeed.

Right, Rajiv Menon King’s Counsel? Mr Menon.