Government seeks judicial review against Covid Inquiry demands for unredacted WhatsApps from pandemic

The government on Thursday sought to bring a judicial review against the Covid Inquiry over its demand that it hand over a swathe of unredacted documents including Boris Johnson’s Whatapps.

The Cabinet Office said it was seeking a judicial review of inquiry chairwoman Baroness Hallett’s order to release the documents, arguing that it should not have to hand over material which is “unambiguously irrelevant”.

But Boris Johnson later said he is “more than happy” to hand over his unredacted WhatsApp messages and notebooks directly to the Covid inquiry, as the Government prepares for a legal battle with the probe.

In a letter to the inquiry, released after a 4pm deadline to hand over the material, the Cabinet Office said it had provided “as much relevant information as possible, and as quickly as possible” in line with the order.

But the letter said: “The Cabinet Office has today sought leave to bring a judicial review.

“We do so with regret and with an assurance that we will continue to co-operate fully with the inquiry before, during and after the jurisdictional issue in question is determined by the courts, specifically whether the inquiry has the power to compel production of documents and messages which are unambiguously irrelevant to the inquiry’s work, including personal communications and matters unconnected to the Government’s handling of Covid.”

Mr Johnson, in his own letter to the inquiry on Thursday evening, then offered to hand over the requested material directly.

He wrote: “This is of course without prejudice to the Judicial Review that the Government has now launched. I agree with the Cabinet Office position that in principle advice to ministers should not be made public. That is clearly essential for the effective running of the country and for the impartiality of the civil service.

“I am simply making a practical point: that I see no reason why the inquiry should not be able to satisfy itself about the contents of my own Whatsapps (sic) and notebooks, and to check the relevant Whatsapp (sic) conversations (about 40 of them) for anything that it deems relevant to the Covid inquiry.

“If you wish to have this material forthwith, please let me know where and how you wish me to send it to you.”

The government’s move sparked an immediate row at Westminster on Thursday afternoon.

Liberal Democrat Deputy Leader Daisy Cooper MP said: “This cowardly attempt to obstruct a vital public inquiry is a kick in the teeth for bereaved families who’ve already waited far too long for answers.”

Meanwhile Labour accused the Prime Minister of being “hopelessly distracted with legal ploys to obstruct the Covid inquiry in a desperate attempt to withhold evidence”.

Whitehall officials are concerned about the wider precedent that will be set by handing over swathes of unredacted WhatsApp conversations, with fears that the inquiry will seek similar levels of disclosure from other senior figures including Mr Sunak himself.

Lady Hallett issued her demand for the material under Section 21 of the Inquiries Act 2005, and failure to comply could lead to prosecution and a potential fine or jail term for an individual found guilty of the offence.

But in arguments contained in a tranche of legal documents and letters published on Thursday evening, the Government insisted that there were “important issues of principle at stake” affecting the rights of individuals and “the proper conduct of government”.

In making the judicial review application, the Cabinet Office argues that concerns are “sharpened by the fact that irrelevant material contains ‘references to personal and family information, including illness and disciplinary matters’ and ‘comments of a personal nature about identified or identifiable individuals which are unrelated to Covid-19 or that individuals’ role in connection with the response to it’”.

Elsewhere, it is argued the inquiry’s concept of what is or is not relevant could have “absurd” implications and would leave the body “utterly swamped” and potentially slow proceedings.

The row with the inquiry centres around Mr Johnson’s WhatsApp messages, diaries and personal notebooks, which the former prime minister handed over on Wednesday to the Cabinet Office in unredacted form.

But the documents reveal that the WhatsApp messages passed to officials are only from May 2021 onwards.

In a statement to the inquiry, senior civil servant Ellie Nicholson said Mr Johnson’s lawyers have not provided a “substantive response” to a request from the Cabinet Office for his old mobile phone.

Ms Nicholson said the Cabinet Office had received Mr Johnson’s WhatsApp messages on Wednesday afternoon and was reviewing the material “for national security sensitivities and unambiguously irrelevant material, and appropriate redactions are being applied”.

She added: “In that material, there are no WhatsApp communications before May 2021. I understand that this is because, in April 2021, in light of a well-publicised security breach, Mr Johnson implemented security advice relating to the mobile phone he had had up until that time.

Mr Johnson was forced to change his mobile in 2021 after it emerged his number had been publicly available online for 15 years.

Mr Johnson’s notebooks will be shared with the Covid inquiry in batches as the Cabinet Office did not have enough time to redact them after they were handed over, the inquiry was told.

A spokesman for the Covid-19 inquiry said: “At 4pm today the chair of the UK Covid-19 public inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the chair’s ruling of May 22 2023.

“Further information will be provided at the module two preliminary hearing at 10.30am on June 6.”

Rishi Sunak, who spoke to broadcasters during a visit to Moldova just 45 minutes before Thursday’s 4pm deadline and before the release of documents, had insisted ministers would act with “transparency and candour”.

The move has prompted warnings that bereaved families could now regard the public inquiry as a “whitewash and cover-up”.

Elkan Abrahamson, head of major inquests and inquiries at Broudie Jackson Canter, who represents the Covid-19 Bereaved Families for Justice group, said: “The Cabinet Office is showing utter disregard for the inquiry in maintaining their belief that they are the higher power and arbiter of what is relevant material and what is not.

“It raises questions about the integrity of the inquiry and how open and transparent it will be if the chair is unable to see all of the material.”