The Tories’ handling of Covid was a disaster – but was it misconduct?

The Covid Inquiry is revealing a catalogue of incompetence and dysfunction. The innumeracy and misogyny at the heart of Government combined with an indifference to human suffering that saw Rishi Sunak branded Dr Death. But will the architects of this catastrophe be held to account?

After taking legal advice, we’ve concluded that it would be hard to establish that leading Tories have committed misconduct in a public office.

The person must either have deliberately done something wrong or been “recklessly indifferent” to the question of whether it was wrong or not. This test comes from a 2003 judgment of Lord Bingham: “conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable”. And he added that “a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment”.

And any breach must be particularly serious. There must be “a serious departure from proper standards” that is “not merely negligent but amounting to an affront to the standing of the public office held,” as the matter was put by Lord Justice Pill in 2003. “The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice.”

Despite the 230,000 people who have died from Covid in the UK, this is a very high bar for a prosecution to meet. Showing that a Minister set out to do something wrong – or just didn’t care – needs much stronger evidence than showing that they did something wrong because they weren’t paying attention, or didn’t understand what they were doing.

Ministers could also argue that, with a new virus sweeping across the world, they were balancing complex decisions without enough information to be sure about the likely consequences.

“In the middle of an unprecedented pandemic, with difficult decisions being made in the heat of the moment, courts are going to give politicians an enormous amount of latitude,” explained Good Law Project’s Executive Director, Jo Maugham. “This is clearly the right approach – although the  latitude is not unlimited.”

As the inquiry continues, we’ll be watching out for evidence that Ministers acted for their personal or political gain, instead of in the public interest. But as always we should expect, and indeed democrats should want, that the final verdict on the flagrant partying, the money handed out to Tory cronies and the lives that were lost will come at the ballot box.

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