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

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 tried to sidestep its requirement to hand over the files by claiming it did not actually have them.

That riled Hallett, since the Cabinet Office had pushed back so hard against handing over the documents by claiming the redacted parts were “unambiguously irrelevant”. It emerged that government lawyers had vetted the documents, but handed them back when officials decided which bits they thought should not be given to Hallett’s team.

Johnson’s team also claimed the Cabinet Office had still had access to the documents for months, and been able to view them on multiple occasions in his office.

Hallett demanded that senior officials set out a detailed explanation of who had access to the documents and when, to be attested by a signed statement of truth. She set a deadline of 4pm on 1 June.

To break the impasse, Johnson sent 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 is 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 effectively suspend Hallett’s notice demanding the documents, while the full case is decided. Such an 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 chance 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 so it was 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 sticks to arguing on relevance grounds.