I am sorry, for more than one reason, to have to come back to Her Majesty’s Government as a source of discovery / disclosure stories, but they keep serving up incidents which are relevant to wider corporate disclosure. This time, it is about Matt Hancock, the former Health Secretary, who seems to have used his personal email account to manage correspondence about negotiating PPE contracts, creating the test-and-trace programme and the care homes strategy.
He was also the unwitting star of a video of an intense staff meeting, which raises interesting questions about surveillance and privacy, and is a living illustration of how proper compliance mechanisms ought to prevent wrongdoing.
Some of Matt Hancock’s deals were made with party donors, whose contributions weighed more heavily than their ability to deliver the goods; £39 billion seems to have disappeared largely without trace in the development of a test-and-trace process organised by one of his horse-racing mates; the care home decision was perhaps the biggest single error in Hancock’s error-strewn handing of the pandemic, when Covid sufferers were despatched into care homes to infect their elderly residents.
Matt Hancock had form, as they say in racing circles. The horse-racing industry has always been generous in its gifts to Hancock’s constituency party, and got their return when he permitted the 2020 Cheltenham event to go ahead. This was the original superspreader occasion, right at the beginning of the pandemic, as Hancock was warned it would be. But he was in racing’s debt, and the event went ahead.
Many big companies have compliance systems, with dashboards which draw attention to actual breaches of the law or of regulatory or internal rules. If Whitehall had such a thing, Hancock would trigger every red light and siren. Perhaps he did and they turned it off to avoid the noise, much as people now turn off the test-and-trace app to avoid being told that they should self-isolate.
So Matt Hancock was left to do what he liked, and what he liked to do was to conduct government business on his private email account, away from the censorious gaze of civil servants. To take just one example, one of the dubious contracts was funnelled through a company in which he owned a 20% shareholding. When this became public, the government’s adviser on ministerial standards, Lord Geidt, poured whitewash over it, saying it was a “technical” error and a minor breach of rules.
You would think that the decision-making behind all this should be transparent and that the correspondence would be available for review in litigation and the inevitable public inquiry. You would think wrong. The story can be found here on the BBC news website.
It should not really be necessary to have formal guidance stating that communications involving “substantive discussions or decisions generated in the course of conducting government business” should be stored on Whitehall servers. When rumbled, the government said that it had already searched 1.4 million documents, and that it would not be proportionate to go looking for more. The rather bizarre reasoning was that nothing in the documents already searched indicated that they might find more in the private accounts. If all was above board, then why did Hancock use his private account at all? Surely the whole point of doing this was to keep the transactions away from the civil servants?
Translate these facts to ordinary commercial litigation. The CEO has been running company business worth millions or billions of pounds on his own email account. There are already serious questions to ask about the decision-making process (which resulted in thousands of deaths as well as vast amounts of the company’s money). The CEO’s probity is questionable – his cronies, and people on his “VIP list” have picked up profitable contracts at high prices for delivery of products in which they have no expertise while specialist providers have been spurned.
When sued, however, the company says it has already searched through many documents and thinks it disproportionate to investigate the CEO’s private emails, while admitting that company business was conducted on them.
In civil discovery / disclosure this would lead to an automatic assumption that there was something to hide and a wrongful motive. When I made this observation on Twitter, Professor Dominic Regan immediately replied with this:
There will in due course be a public inquiry into the government’s (and specifically Matt Hancock’s) handling of the pandemic. I suspect there will be further court proceedings thereafter. I look forward to the government saying in that context that it really couldn’t be bothered to search Hancock’s emails.
There is a further, and unrelated, point about Matt Hancock, this one with a privacy and data protection theme of interest to discovery / disclosure people. His downfall came not for incompetence or his interesting use of public money but because of a video showing him with his hands full of more than health matters. He had hired an old and close friend, Gina Coladangelo. Her work involved close contact with the minister, as appeared from a video showing them engaged in deep discussion in what he imagined to be the privacy of his office.
It was less private than he thought, with a video camera mounted in the ceiling which, touchingly (as it were), captured the intensity of the conversations between minister and adviser. All sorts of interesting questions arise about the presence of the camera and the extraction and circulation of the video. If the most senior person in the building was being recorded on video, what of all the other staff? Who put the camera there and with what authority? How good is the security in this important government office? How did the video make it to the newspaper which published it?
There have already been police raids on houses in connection with the video, but the government line on this seems to be similar to its attitude to Matt Hancock’s use of private emails – nothing to see here. The man described by Boris Johnson as “useless” and “f******* hopeless” survived his leader’s encomium to preside over 130,000 Covid deaths. Will he also survive the use of private emails and the most embarrassing video ever to emerge of a government minister?
Book your seats now for the public inquiry and for the ensuing proceedings in other venues.