Cabinet Office loses court bid over Covid inquiry request for Johnson messages

The Cabinet Office has lost its legal challenge to the UK Covid-19 Inquiry chairwoman’s request for Boris Johnson’s unredacted WhatsApp messages, notebooks and diaries.

The department brought legal action over inquiry chairwoman Baroness Heather Hallett’s order to release the documents, arguing it should not have to hand over material that is “unambiguously irrelevant”.

In a judgment on Thursday, Lord Justice Dingemans and Mr Justice Garnham dismissed the department’s legal challenge, but said the Cabinet Office could make a different application to Lady Hallett.

The court's judgment is a sensible resolution and will mean that the inquiry chair is able to see the information she may deem relevant, but we can work together to have an arrangement that respects the privacy of individuals and ensures completely irrelevant information is returned and not retained

Following the ruling, a Government spokesperson said the inquiry “is an important step to learn lessons from the pandemic and the Government is cooperating in the spirit of candour and transparency”.

The spokesperson continued: “The court’s judgment is a sensible resolution and will mean that the inquiry chair is able to see the information she may deem relevant, but we can work together to have an arrangement that respects the privacy of individuals and ensures completely irrelevant information is returned and not retained.

“We will comply fully with this judgment and will now work with the inquiry team on the practical arrangements.”

The two judges said in their ruling that Lady Hallett had issued her order requesting documents that “relate to a matter in question at the inquiry”.

They continued: “The diaries and notebooks sought were very likely to contain information about decision making relating to the Covid-19 pandemic and therefore ‘relate to a matter in question at the inquiry’.”

Lord Justice Dingemans and Mr Justice Garnham added: “To answer the practical issue which seems to have divided the Cabinet Office and the chair of the inquiry, the chair of the inquiry may examine the contested documents, and if the chair of the inquiry agrees that they are obviously irrelevant, will return them.”

The judgment was welcomed by Covid-19 Bereaved Families for Justice UK after several of its members attended the hearing in London in June.

Deborah Doyle, spokesperson for the group, said: “This judicial review was a desperate waste of time and money. The inquiry needs to get to the facts if the country is to learn lessons that will save lives in the future.

“That means it needs to be able to access all of the evidence, not just what the Cabinet Office wants it to see.”

Elkan Abrahamson, a lawyer at Broudie Jackson Canter representing the group, said: “This is the correct decision to ensure the inquiry maintains its authority and allows it to get to the truth.

“Without full access to all relevant evidence the integrity of the inquiry would have been further undermined and left toothless by the very Government that set it up.”

At a hearing last month, lawyers for the department argued the inquiry does not have the legal power to force ministers to release documents and messages it says cover matters “unconnected to the Government’s handling of Covid”.

However, Hugo Keith KC, for the inquiry chairwoman, said the idea that the Cabinet Office could decide which aspects were relevant “would emasculate this and future inquiries”.

And Lord David Pannick KC, on behalf of the former prime minister, argued there is a “real danger” of undermining public confidence in the process if the department wins its bid.

The Government took the highly unusual step of launching the challenge in June, in a move which attracted criticism after days of public wrangling between the Cabinet Office and Lady Hallett’s probe.

The former prime minister handed over his unredacted WhatsApp messages, diaries and 24 notebooks to the Cabinet Office in late May.

Mr Johnson himself backed Lady Hallett, who rejected the argument that the material was irrelevant in a May ruling, in opposing the legal challenge over the request.