No kompetenz-kompetenz?

Government says Hallett cannot set her own limits

Baroness Hallett does not have kompetenz-kompetenz, the government’s senior independent lawyer said yesterday — meaning that as chair of the Covid-19 inquiry she does not have the power to decide the limits of her own jurisdiction or powers.

Sir James Eadie KC made the point in an 18-page statement of facts and grounds, submitted by the Cabinet Office in support of an application for judicial review of Hallett’s notice ordering the production of Boris Johnson’s diaries, notebooks and WhatsApp messages. The High Court is being asked to quash the notice.

Cabinet Office, Whitehall

Kompetenz-kompetenz is a recognised principle of arbitration law under which an arbitral tribunal can decide its own jurisdiction. Though the term is fairly new, the principle was well established under public international law by the 18th century. Eadie argues that it has no application to a public inquiry.

The government’s decision to challenge a notice issued by the former appeal judge whom it appointed to chair an inquiry into its own conduct may not be a good look. But from a legal point of view it should come as no surprise.

In a lengthy analysis published here on Monday — before the deadline for handing over the documents had been extended to yesterday — I noted Eadie’s unsuccessful request for the chair to think again and wrote: