Covid inquiry v Cabinet Office: who is ahead now deadline has passed?

Ministers are taking legal action against the inquiry, which, if successful, would mean it could not see Johnson’s unredacted messages

The already knotty row over Boris Johnson’s unredacted WhatsApps has been even more complicated by ministers launching legal action against the official Covid inquiry.

How did the row begin?

The Cabinet Office has refused to pass on Johnson’s unredacted WhatsApps and notebooks for two reasons. Primarily, senior Whitehall bosses believe they should decide what information is and is not relevant to the Covid inquiry.

But there is another issue at stake. There are said to be many personal and innocuous messages mishmashed in the jumble of potentially tens of thousands of texts.

The Cabinet Office argues that ministers’ privacy is important and that forums should be protected where they can discuss the pros and cons of policy in secret.

There is a third reason, which is not openly admitted to but talked of among high-level government insiders: They fear that handing over Johnson’s unredacted messages sets a precedent, and that further requests would then follow for other ministers, including the prime minister, Rishi Sunak.

How did the government try to avoid complying?

The Cabinet Office initially tried to argue that the chair of the inquiry, Heather Hallett, did not have the right to demand the full unredacted messages.

Government lawyers had vetted the documents, and officials decided that those sections deemed “unambiguously irrelevant” should be withheld from the Covid inquiry.

To further sidestep the requirement to hand the files over, the Cabinet Office later said that after it vetted the documents and gave only redacted versions to the inquiry, it handed the full contents back to Johnson and so was no longer in possession of them.

To break the impasse, Johnson sent some of his WhatsApp messages to a handful of officials at the Cabinet Office, and arranged for his notebooks to be collected. The messages however only date back to May 2021. Anything before then was stored on a separate phone, which the Cabinet Office said he had not handed over.

What will happen next?

An application will need to be made to the high court, which can be done quickly, potentially by the following day.

The Cabinet Office could seek urgent interim relief, which would in effect suspend Hallett’s notice demanding the documents, while the full case is decided. This interim hearing could happen in days.

Hallett could decide instead to put the notice on ice, pending the decision of the court. The whole case, say experts, could be dealt with in weeks.

What are the Cabinet Office’s chances of success?

Senior officials would only proceed with the case if their legal advice indicated they stood a chance of winning.

However, Johnson’s decision to hand over the documents may suggest he thought such a battle was not winnable – and that it was therefore better to take the quicker and less painful route.

Jonathan Jones, who used to run the government legal department, told the Guardian he thought the courts would ultimately favour Hallett, if the government stuck to arguing on relevance grounds.


Aubrey Allegretti and Kiran Stacey

The GuardianTramp

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