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What's Going On With The Row Over Boris Johnson's Covid Messages?

Former Prime Minister Boris Johnson (Alamy)

5 min read

A row has exploded between the government and the inquiry into its response to the Covid pandemic in recent days over how much access inquiry chair Baroness Hallett should have to Boris Johnson's private messages and diaries from the time.

When Johnson announced in December 2021 that Baroness Hallett would lead the inquiry, he lavished praise on the retired judge and leader of the independent inquest into the 7/7 bombings, opining that she would bring a "wealth of experience to the role". He said that she shared his "determination that the inquiry examines in a forensic and thoroughgoing way the government’s response to the pandemic".

But the former prime minister, who now sits on the Tory back benches, is now at the centre of an extraordinary dispute involving Hallett and the Cabinet Office, which is refusing to hand over the requested documents. The row could even escalate to a major court case if both parties don't come to an agreement by the extended deadline on 4pm on 1 June

Exactly what material the Cabinet Office has access to, and to what extent the inquiry has the right to demand it remains unclear, with briefings and counter-briefings firing from numerous directions not making it any easier to follow along. 

Here's what you need to know so far: 

How did the row start?

Last week Hallett issued a legal notice to the government using section 21 of the Inquiries Act 2005 to demand Johnson's unredacted WhatsApp messages and personal notebooks from the time period when he was in Downing Street during the Covid pandemic, with a deadline of 4pm 30 May.  

She accused the Cabinet Office of refusing to disclose the materials, having argued that they believe it is "unambiguously irrelevant" to the inquiry's work. Hallett argues it is not for the Cabinet Office to decide what materials are relevant to the inquiry. 

There is suggestion that the inquiry would be prepared to pursue further legal action if the department did hand over the requested material. Cabinet Office lawyers are reported to be considering a judicial review challenging Hallett's request for the messages and diaries. 

On Tuesday the deadline to hand over the materials was extended by the inquiry to 4pm on 1 June, 48 hours later, as official scramble to come to an agreement, or see whether the government or the inquiry blinks first. 

Why won't the government hand over the messages?

Aside from saying they do not believe Boris Johnson's personal messages are relevant to the inquiry, the government is also arguing that to disclose them would set a dangerous precedent for privacy. The materials are believed to cover conversations between Johnson and senior members of his government, including Sunak who was Chancellor at the time. 

A Cabinet Office spokesperson told PoliticsHome it is "firmly of the view that the Inquiry does not have the power to request unambiguously irrelevant information that is beyond the scope of this investigation".

"This includes the WhatsApp messages of Government employees’ which are not about work but instead are entirely personal and relate to their private lives," they said.

In legal advice to government leaked to Bloomberg on Tuesday, the government's chief lawyer Sir Jamers Eadie appears to suggest that ministers should not give the inquiry "political sensitive material", like discussions between ministers during the pandemic about the government response, as it would breach the confidentiality principle of collective Cabinet responsibility.

Boris Johnson has provided the Cabinet Office with his private WhatsApps and diaries

On Tuesday, the Cabinet Office informed the inquiry that it didn't actually possess the Johnson material at the heart of the row, and therefore can't hand it over regardless. But on Wednesday afternoon Johnson's spokesperson said he had now handed "all" material requested by the inquiry to the Cabinet Office and that the former PM wanted it to be given to the inquiry "urgently".

"The Cabinet Office has had access to this material for several months. Mr Johnson would immediately disclose it directly to the Inquiry if asked," they said.

The spokesperson added that while Johnson does not want to contradict the government's position of not disclosing the material, "he is perfectly happy for the Inquiry to have access to this material in whatever form it requires".

The Cabinet Office now must decide whether to change its position and give the material to Lady Hallett by 4pm tomorrow. 

Johnson would be willing to hand the material to the inquiry if the Cabinet Office does not change its position, PoliticsHome understands.

The Cabinet has been given until 4pm Thursday to produce Boris Johnson's WhatsApp messages and personal notes (Alamy)

What happens now?

Former senior government lawyer Sir Jonathan Jones has set out what he sees as six possible scenarios of how the dispute could develop. 

He wrote on Twitter that he believed the dispute would be immediately resolved if either side caved and the inquiry dropped their request or the government handed over the documents in question or failing either of these, that a compromise was reached imminently. 

But he suggested that these outcomes were unlikely, and that the more "incendiary" possibility of escaltion of serious legal action could be on the cards. 

These, he said, could include the Cabinet Office following through on their threat to judicially review Hallett's demand and have it quashed, the inquiry bringing criminal proceedings against government for refusing to hand over the material, or referring the dispute to the high court who could force the government to hand over the messages. 

The two sides could still reach some sort of compromise. Talks are ongoing in an attempt to find a settlement and avoid further escalation, PoliticsHome understands, though government sources stress a settled agreement is not guaranteed.

As of Wednesday, neither side is showing no signs of backing down.

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