Government to take legal action against Covid
inquiry over Johnson WhatsApps
Cabinet Office serves notice on inquiry chair at 4pm,
the deadline she had set for it to hand over files
Aubrey
Allegretti and Peter Walker
Thu 1 Jun
2023 19.36 BST
Ministers
have launched an unprecedented high court attempt to avoid handing over Boris
Johnson’s unredacted WhatsApp messages and diaries to the
government-commissioned public inquiry into the handling of Covid.
In a move
immediately condemned by bereaved families and opposition MPs, the Cabinet
Office told the inquiry, headed by the retired judge Heather Hallett, that
there were “important issues of principle” over passing on information that
might not be relevant.
Johnson
said on Wednesday he had given unredacted material to the Cabinet Office and
urged it to share it with the inquiry. But the department is concerned this
would set a precedent that could lead to Lady Hallett demanding the WhatsApp
messages of serving ministers – not least the prime minister, Rishi Sunak.
Another
layer of potential chaos was added on Thursday evening when Johnson wrote
personally to Hallett to say he could pass on his unredacted messages and
emails directly, if it helped the inquiry.
This would
take place “without any prejudice to the judicial review”, the letter said,
with Johnson adding that he understood the need for some parts of
decision-making to be private. His offer was just to make a “practical point”
that the inquiry should be able to see the material itself, he said.
A
spokesperson for the inquiry said Hallett was formally served notice of the Cabinet
Office’s plan to seek judicial review of her demand for the material at 4pm on
Thursday, the deadline she had set for the evidence to be provided.
The Cabinet
Office’s letter to the inquiry said the legal process was being launched “with
regret and with an assurance that we will continue to cooperate fully with the
inquiry before, during and after the jurisdictional issue in question is
determined by the courts”.
Hallett
first demanded the WhatsApp messages and notebooks from Johnson, and texts from
one of his No 10 aides, Henry Cook, last month.
The Cabinet
Office’s letter on Thursday said it had provided “as much information as
possible”, including WhatsApp messages from Johnson and Cook redacted for
national security reasons and to remove “unambiguously irrelevant material”.
The letter
said that while Johnson had provided the Cabinet Office office with some
messages, these only dated from May 2021, when he acquired a new phone, and
also the month he ordered the inquiry. Officials had asked the former prime
minister to provide earlier WhatsApp communications, it added.
Johnson’s
contemporaneous diaries and notebooks would also be provided, with similar
editing, the letter said, a process likely to be completed in the next two
days.
Hallett has
insisted that she should decide what material is relevant to the inquiry.
The
Guardian was told that Sunak and Oliver Dowden, the deputy prime minister,
signed off the decision to launch a judicial review on Wednesday.
An ally of
Johnson said the reason the former prime minister had not handed over pre-May
2021 messages was that he had changed phones after it emerged his number had
been listed online, and that he was given security advice to not turn on the
old device again. Johnson was thus unable to see the earlier messages, but he
was happy to pass the phone to the inquiry if needed, the ally said.
He had
asked the Cabinet Office about possible security and technical support with
this. The Cabinet Office was aware of this, the ally added.
The
prospect of a legal battle with a formal public inquiry is highly unusual and
risks claims of a cover-up. When ministers set up the inquiry, they promised it
would allow bereaved relatives and others to learn the truth about the
decision-making process during the pandemic.
The
Covid-19 Bereaved Families for Justice group said the prospect of the Cabinet
Office suing the inquiry was “absolutely obscene”.
Rivka
Gottlieb, a spokesperson for the organisation said: “Why are the Cabinet Office
standing in their way? You have to assume that they’re sitting on evidence that
will devastate Rishi Sunak’s reputation and that’s more important to them than
saving lives in the future.”
Angela
Rayner, Labour’s deputy leader, said the public “deserve answers, not another
cover-up”.
She added:
“Instead of digging himself further into a hole by pursuing doomed legal
battles to conceal the truth, Rishi Sunak must comply with the Covid inquiry’s
requests for evidence in full. There can be no more excuses.”
Daisy
Cooper, the Liberal Democrats’ deputy leader, 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.”
While an
interim decision on the issue could be made within days, which could
potentially suspend Hallett’s demands while the case is heard, a full hearing
could take weeks to be completed.
The lengthy
Cabinet Office letter said the issue to be determined by the high court was
“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”.
It went on:
“We consider there to be important issues of principle at stake here, affecting
both the rights of individuals and the proper conduct of government. The
request for unambiguously irrelevant material goes beyond the powers of the
inquiry … It represents an unwarranted intrusion into other aspects of the work
of government. It also represents an intrusion into their legitimate
expectations of privacy and protection of their personal information.”
The letter
was accompanied by a legal document setting out the claim, citing the Cabinet
Office as the claimant, the inquiry as the defendant, and Johnson and Cook as
“interested parties”.
The
decision to challenge the inquiry has already caused disagreement within
government. Grant Shapps, the energy secretary, said officials should be given
“whatever they want” and that there was nothing for ministers “to be shy or
embarrassed about”.
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.
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