Declined with Regret

Avoiding Confrontation

When I was at school in the early 1960’s one of the things we were taught was how to respond to a formal invitation. These responses had to be written out in hand and followed a set formula, repeating much of the detail in the formal invitation including date and place and the critical words “accepts with pleasure” or “declines with regret”.

Those were more elegant times.

The Second phase of the Royal Commission of Inquiry into the Covid-19 pandemic extended an invitation to four key Covid-era decision makers, Jacinda Ardern, Chris Hipkins, Grant Robertson and Ayesha Verrall to give evidence in a public session.

They have declined to do so. It is doubtful that they couched their response as “declines with regret”. They would only give evidence at sessions that were not open to the public.

The Commission released a minute which stated:

On Thursday 7 August 2025 former Prime Minister Rt Hon Dame Jacinda Ardern, former Prime Minister Rt Hon Chris Hipkins, and former Ministers Hon Grant Robertson and Hon Dr Ayesha Verrall (hereafter “the former ministers”) declined our invitation, citing concerns during correspondence which can be summarised as follows:

a. There is a convention that ministers and former ministers are interviewed by inquiries in private; there is no reason for a departure from that convention in this case; and that acting contrary to that convention would undermine rather than enhance public confidence in this instance.

b. Because all former ministers had been co-operative in attending interviews and answering questions, repeating such questions at a public hearing would be performative rather than informative.

c. Livestreaming and publication of recordings of the hearing creates a risk of those recordings being “tampered with, manipulated or otherwise misused”, a risk which the Inquiry “ought to have foreseen and planned for”.

According to Ani O’Brian the four took legal advice from the firm Dentons before responding. Media law expert and one described by O’Brian as Labour’s go-to gal, Linda Clark, may have been involved.

That said, I think it would be safe to say that in a situation where it is likely that one is going to face hostile questioning from an official body my advice would be to avoid saying anything. Certainly that is the advice that criminal lawyers give their clients in the face of Police questioning, and the decision whether to call the defendant at trial is a fraught one. I will come back to that shortly.

But let’s look at the reasons that have been given.

The first is the convention that ministers and former ministers be interviewed in private. That has happened here, but there has been neither public scrutiny of the questions nor the answers.

Furthermore the convention is just that. It didn’t prevent Wayne Mapp giving public evidence before an inquiry and Boris Johnson, David Cameron and Theresa May have all given public evidence before a similar enquiry in the UK.

In addition as the Commission observed in its minute

“There is no restriction in the Act against calling former ministers, and we have not identified any principle or convention that prohibits such an action. Former ministers can and do appear before Commissions of Inquiry both in New Zealand, and overseas. We do not accept that the act of having former ministers appear at a public hearing would undermine public confidence.”

The second reason given is that giving evidence publicly would be performative rather informative – words parroted by Grant Roberston to Jack Tame on Q & A on 17 August 2025 where he even described the Commission as a “show trial”. I hardly think that there was likely to be a Stalin or a Vishinsky in the wings..

This is laughable given that the whole exercise involving the 1:00 pm reports and the continued messaging regarding Covid was entirely performative. Indeed, politics today is performative and Ardern herself, with her degree in communications and her experience in politics is well aware of this.

It ill behoves the four to advance this reason given that such actions are part of their daily lives – Ardern on the international stage with the occasional appearances on Oprah (performative or informative?), book launches and her appearance in her husband’s produced documentary, Robertson with a public facing persona as Vice Chancellor of Otago University and Hipkins and Verrall who are still centre stage – where else does one perform.

The third reason – tampering with live streams – is similarly laughable. Ardern must be living under a rock if she is unaware of the number of uses of her Covid announcements that have been spread about social media. Her explanation of the traffic light system and the recognition that there would be two classes of people (Vaxxed and Unvaxxed) provide two examples.

The commission noted that this was a feeble reason for declining.

“We note the concerns of the former ministers about recordings being manipulated or misused, but these risks reflect the modern communications environment, and few public hearings are immune to misrepresentation or misuse by those intent on it. It is also relevant that the former ministers are public figures whose images widely appear in the media in other contexts. In our view, these risks do not, on their own, outweigh the benefits of having a public hearing.”

The minute of the Commission which was dated 13 August was focussed upon whether there was any point in proceeding with the second week of the hearing in the absence of the four. It decided that proceeding with the hearing was not justified and noted that there were other ways by which it could obtain evidence.

It was also noted that “the refusal of former ministers in this case to attend the public hearing is not a refusal to provide information, just to answer questions at a public hearing.”

What was surprising was that the Commission had the power to issue a subpoena to require each of the four to appear. But it chose not to.

My experience of Mr Illingworth is that he leaves no stone unturned when it comes to seeking information. That he has chosen to adopt the course that he did in this case is unusual. However, the witnesses have said they will continue to co-operate – just not in public. And as Mr Illingworth KC has noted, there are other ways for the Commission to obtain the information sought.

One thing that did occur to me was that the four might have been exposed to cross-examination. That would really have been something and would have attracted a huge viewing audience. A careful and penetrating cross-examination could have elicited some interesting information and would have put the witnesses under pressure. In thinking about this I wondered whether this may have been a reason for them to decline the Commission’s invitation.

But a typical cross-examination was not available. The Covid-19 inquiry uses a “non-adversarial” process where witnesses are not cross-examined which saves time and expense.

Indeed, in an early minute about procedure the Commission noted that the terms of reference required that the Commission not take a legalistic and adversarial approach. In fact, evidence gathering would be by way of interview.

That said the proposals for the second public hearing to be held between 20^th and 27 August 2025 stated as follows:

“Both public hearings will be held in secure hearing rooms with the Commissioners, witnesses, counsel, and media present. Beyond the media presence, there will be no provision for public attendance, but the hearings will be live-streamed and recordings will also be published on the inquiry website.

At the hearings, witnesses will be questioned by counsel assisting the inquiry. Commissioners may also ask questions. Any other questioning will be at the discretion of the Commissioners, subject to the principles of procedural fairness.”

Thus, a certain level of questioning would be carried out although it is not characterised as cross-examination which is an aspect of adversarialism. The questioning would probably be less aggressive than a “full-on” cross-examination.

The same document stated:

“The second hearing will provide a public forum for some of the most important evidence of this inquiry: that of the decision-makers and their advisers. Also:

(a) It will allow questioning of key decision-makers about their decisions:

(b) It will enable the public to see and be confident in how the inquiry is operating:

(c) It will help the public to understand the decisions and matters we are required to review.”

Essentially by declining to appear the four potential deponents would avoid a high level of public scrutiny of their evidence. Easier to give answers in writing which could be crafted and massaged. Having to answer ex tempore would not allow for the level of massaging that a written answer might bring to bear. But it is the public scrutiny and the avoidance of that by declining that demonstrates an unwillingness to be held publicly accountable for decisions that affected the lives of every New Zealander.

A Herald editorial for 17 August was very critical of the refusal. That editorial stated:

“One of the reasons Labour’s overwhelming support so quickly eroded after winning an unprecedented MMP majority Government in 2020 was because they lost our trust.

The reputations of many in the Beehive during the Covid-era may never be repaired. Many will refuse to forget or forgive.

But if Hipkins wants to be Prime Minister again – and current polling suggests he has a decent chance – then he should want to do anything to rebuild that trust with the public.

We all remember the daily 1pm briefings, and New Zealanders want to see those who stood at the podium of truth answer questions publicly now. It may well go a long way to helping soften the continued resistance to the idea of Hipkins returning to the ninth floor, particularly among Aucklanders.

A collective reason given by the former ministers to avoid the public aspect of the inquiry was concern their comments will be used to spread misinformation.

Yet the opposite can be argued to be true. For what was the self-proclaimed most transparent Government ever, staying silent only invites speculation and yes, fuels the most bonkers conspiracy theories online”

Putting to one side the tendency of mainstream media to treat any contrarian point of view as a conspiracy theory the question that resonates is whether Hipkins and Verrall have demonstrated by their actions their fitness to occupy the Treasury benches. Clearly, they are reluctant to be held publicly accountable regarding their actions over Covid. That would demonstrate an unfortunate propensity for the future.

So if Hipkins and Verrall – as they will – invite me to vote for them I will decline. They don’t deserve the courtesy of a polite reply.