Legal case issued in campaign for publication of Cygnus Report
An NHS doctor and a freelance journalist have issued judicial review proceedings challenging the Government's decision to refuse to publish the full findings in relation to Exercise Cygnus, a simulation exercise carried out in 2016 testing preparedness for a flu pandemic.
Posted on 01 June 2020
Dr Moosa Qureshi and journalist Tommy Greene filed their claim against the Secretary of State for Health and Social Care, Matt Hancock, in the High Court today.
Leaks of some of the findings relating to Exercise Cygnus have been published by The Sun and Guardian newspapers, however, the government have failed to confirm whether the leaks are genuine and in any case the claimants believe that the full extent of the findings in relation to the Cygnus exercise has not been disclosed. The claimants seek all the findings, lessons or recommendations arising out of Exercise Cygnus, including reports sent to and/or by participants in the exercise (referred to collectively as the Cygnus Report).
Dr Moosa and Mr Greene say the information is critical in holding the Government to account and scrutinising its ongoing decisions at a time when tens of thousands of people have died in the UK during the COVID-19 pandemic, and when untold economic and social harms have resulted. In particular they believe that the Cygnus report may indicate the extent to which the UK had gaps in its PPE stockpiling and had adequate provisions for critical care in hospitals.
Dr Qureshi and Mr Greene, represented by Leigh Day solicitors Tessa Gregory and Carolin Ott, claim that the refusal to publish the Cygnus Report is unlawful under the Civil Contingencies Act 2004, under Section 6 of the Human Rights Act 1998, a violation of Article 10 of the European Convention on Human Rights and unreasonable at common law.
Under the Civil Contingencies Act the Government has a duty to arrange for the publication of assessments made and plans maintained to enable action to be taken in connection with an emergency.
Section 6 of the Human Rights Act requires the Government to comply with Article 10 of the ECHR which gives the public the right to receive information.
The Government has insisted that any request for the publication of the report should be made through the Freedom of Information Act 2000 (FOIA). Despite the fact that it has already refused such a request from Dr Qureshi, saying the costs would exceed the limit allowed by the FOIA.
In their legal case it is argued that judicial review raises important issues of law not covered by FOIA 2000, including the requirements of the Civil Contingencies Act 2004, the scope of Article 10 ECHR in emergency situation and whether the Secretary of State is required to give public substantive reasons for not disclosing the Cygnus Report.
The claimants argue that the insistence on using the FOI process, which following a refusal would involve a complaint to the Information Commissioner is inappropriate and would take a considerable time to pursue. The immediate need for the Cygnus Report to hold the government to account, means it is not suitable alternative remedy. They say the Government is intent on exploiting the possibilities of delay afforded by the FOI process.
Dr Qureshi and Mr Greene are requesting that the High Court declares that the Secretary of State’s decision to refuse to disclose and/or publish the Cygnus Report in full is unlawful and that an order is made to disclose the Cygnus Report.
Dr Moosa Qureshi said:
“The Health Secretary's refusal to allow us to learn from a national pandemic exercise - when we are in the midst of a viral pandemic which continues to claim hundreds of lives daily - shows his callous disregard for human life.
“It also shows his disrespect for the NHS professionals who have had to lay their lives on the line blindly, deprived of data which they need to fight COVID-19 effectively.
“It damages our national response to this public health emergency if pandemic data is hidden from the nurses and doctors who are managing this crisis on the ground. We have repeatedly engaged with the Government to make the case for transparency but unfortunately the Health Secretary has refused to allow us to learn from Cygnus, without rhyme or reason.
“Regretfully, I have therefore been forced to instruct my solicitors to issue legal proceedings against the Government in the national interest.”
Tommy Greene said:
"There is an overwhelming public interest in the full publication of the Cygnus Exercise's findings.
"This is both true for affording the public a sense of ownership in government decisions as well as it is for allowing adequate scrutiny of policy to take place - which, in turn, will result in more effective governance.
"Like many of my colleagues when enquiring into the handling of the pandemic, I have encountered a government response that has so far been characterised by secrecy and evasiveness.
"Given that FOI requests for full disclosure around the Cygnus Report have already been denied by the government, the suggestion we rely on this channel seems little more than a cynical delaying tactic at this stage.
"We are now at a critical juncture in this crisis. As we're witnessing a considerable erosion of public trust in the face of a potential second wave, and as checks on decision-making - like the FOI Act - are weakened further, the argument for government transparency and accountability here could not be more urgent."
Leigh Day partner, Tessa Gregory added:
“My clients are challenging the Health Secretary’s refusal to publish a series of reports relating to Exercise Cygnus because they consider that there is an extremely powerful case for publication, in circumstances where the UK Government has repeatedly relied upon Exercise Cygnus to demonstrate that it was prepared for the current pandemic, and where one of the reports has already been leaked.
“Publication is required in order to allow the scientific community, media and the public to evaluate and critique the Government’s ongoing response. This is particularly critical given the easing of lockdown and the possibility of further pandemic waves.
“It is difficult to understand why during this public health emergency the Government who have committed themselves to transparency are spending time and resources defending this claim rather than simply providing the information requested.”
Dr Qureshi is crowdfunding his case.