Government seeks judicial review of Covid inquiry’s demand for Johnson documents

The Cabinet Office said it was taking the step ‘with regret’.

Boris Johnson (Jonathan Brady/PA) (PA Wire)

The Government will fight a legal battle over the Covid inquiry’s demand to release Boris Johnson’s unredacted WhatsApp messages, diaries and personal notebooks.

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”.

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.

The letter said that the Cabinet Office was bringing the judicial review challenge “with regret” and promised to “continue to co-operate fully with the inquiry before, during and after the jurisdictional issue in question is determined by the courts”.

That question will centre on whether Lady Hallett’s inquiry has the power to force ministers to release documents and messages which the Cabinet Office believes are “unambiguously irrelevant” and cover matters “unconnected to the Government’s handling of Covid”.

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

Elkan Abrahamson, Broudie Jackson Canter solicitors

It is highly unusual for a Government to take legal action against its own inquiry, with the move prompting swift criticism after days of public wrangling between the Cabinet Office and Lady Hallett’s probe.

Labour accused the Prime Minister of being “hopelessly distracted with legal ploys to obstruct the Covid inquiry in a desperate attempt to withhold evidence”, while the Liberal Democrats condemned it as a “kick in the teeth for bereaved families”.

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.

It is understood that the former prime minister has no objection to providing the material on the phone to the inquiry.

He is believed to have written to the Cabinet Office to ask whether security and technical support can be given to help retrieve the content on the device without compromising security.

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 ahead of Thursday’s 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.”