Spoon feeding at the Inquiry, indeed

The Covid Inquiry's lead counsel fed evidence to Michael Gove, while senior Ministers are now contradicting each other on the legitimacy of the Government’s exercise of lockdown powers

Michael Gove delivered one of the most erudite, or at least well-rehearsed, performances on stage at the Covid Inquiry this week. He was confident, careful and only mildly controversial (a lab leak, who’d have thought…).

Among the unreported aspects of his evidence, however, was a brief exchange with Hugo Keith KC which is important both for what Gove says, and for how Keith helps him to say it.

Keith asked Gove why the Government had imposed lockdowns by using powers under the Public Health Act (PHA) rather than under the Civil Contingencies Act (CCA). Independent lawyers, including notably the former Supreme Court Judge Jonathan Sumption, seem mostly to agree that the PHA is a statute designed to enable magistrates and local public officials to order the quarantine of infectious individuals or premises, but not to enable the entire country to be locked down, whereas the CCA is a statute designed specifically to allow the Government to temporarily restrict our liberties in the event of a serious national emergency.

Gove at first suggested that because the CCA had been intended for use in serious national crisis scenarios, such as a major terrorist attack, the powers it would have granted the Government were draconian, and probably too draconian for the circumstances presented by the pandemic. ‘What are those draconian powers?’ one might have expected Keith to ask in response (he didn’t).

They certainly include lockdowns — powers to close businesses, venues, public spaces, and to confine us in our homes — and one might fairly assume those are the sorts of powers that would have been exercised had the CCA been invoked. In other words precisely the same draconian powers which the Government then anyway persuaded itself that it could exercise, and went on to exercise, under the PHA.

To conclude that the CCA could not be used was convenient for Gove and other Ministers, however, because invoking the CCA would have obliged those Ministers to account to Parliament — on a weekly basis — for the continuation of any orders made using those powers, and parliamentarians might then have demanded concessions, or at least to see the evidence on the basis of which the lockdowns were being imposed.

In contrast, orders made under the Public Health Act required no such justification; in fact the first such national lockdown order was not debated in Parliament until a full six weeks after it had come into effect. Some jurists have questioned whether the exercise of lockdown powers was even legally permitted at all under the PHA.

Keith, perhaps sensing that Gove might have strayed a little off the path, tried to guide him back to more solid ground by suggesting that what he really meant was that the procedural aspects of the CCA (including having to account frequently to Parliament) were draconian — “nightmarish” even. Gove took the hint, and agreed.

Realising that he may need to shepherd his witness a little more closely, Keith continued his encouragements: there was also a legal reason why the CCA could not be exercised, was there not? Gove, perhaps remembering this bit from an earlier prep session with the Government’s lawyers, agrees. Keith proffers that the pandemic may not have been ‘unforeseeable', so perhaps it would not have been certain that the CCA powers could in fact be used?

“Precisely so” Gove exclaimed, by now catching on (though the Inquiry’s stenographer omitted an exclamation mark and smiley face with hearts emoji).

But the evidence that Keith fed to Gove in that brief exchange jars with the seemingly strongly-held view of the Inquiry, its lawyers and many of its witnesses up to that point: that the arrival of Covid 19 in the UK in March 2020 posed an existentially serious, novel, urgent and unprecedented threat to the lives of millions of people in this country. That vision of a novel, urgent and unprecedented threat has become the backdrop against which the Inquiry has burnished the reputations of heroic public servants, and trashed those of lockdown sceptics and the handful of incompetent politicians and panto villain aides.  

Yet now it seemed that Keith and Gove were agreeing that in March 2020, the arrival of Covid, plus the WHO’s confirmation that it had become a pandemic, plus robust modelling predicting up to 500,000 deaths and the imminent destruction of the health service, did not make for a sufficiently urgent and unpredictable situation “which threatens serious damage to human welfare” (the CCA test).  

Keith and Gove's position also jars with earlier comments from Boris Johnson, who in his evidence to the Inquiry had said “Looking back, I think the arguments deployed against a pan-UK Civil Contingencies Act based approach are weak.  For shear scale, horror and urgency Covid-19 easily met the tests of the Act”.  Hugo Keith must have been aware of this, yet chose not even to notice this stark inconsistency between the recollections of the two most senior decision-makers in Downing Street at the time.

Instead, in response to Gove’s quite probably inaccurate suggestion that the Government really had no choice but to rely on the Public Health Act — an assertion behind which hides an enormously significant constitutional question about the role that Parliament could and should have played in pandemic decision-making — Keith replied supportively: “indeed”.

If you enjoy our Broken Custodian articles you should also like the new book by Molly, Arabella and Ben of UsForThem: ‘THE ACCOUNTABILITY DEFICIT, How ministers and officials evaded accountability, misled the public and violated democracy during the pandemic’, which is already a civil liberties and political activism bestseller on Amazon. “An eye-opening book … one to keep”, a recent reviewer has commented.