The Government is trying to withhold Boris Johnson’s WhatsApp messages and diary entries from the Covid-19 Inquiry. What is the Inquiry doing about it?
On 28 April 2023, the Chair of the UK Covid-19 Public Inquiry, Baroness Hallett, issued a Notice under section 21 of the Inquiries Act 2005 to the Cabinet Office, a central Government department. The Notice follows the Cabinet Office’s failure to comply with previous requests from the Inquiry and requires it to hand over, in unedited form, many of Boris Johnson’s WhatsApp messages, diaries and notebooks entries made during the pandemic. This is a significant move, given that failure to comply with a section 21 Notice without reasonable excuse constitutes a criminal offence punishable by a fine of up to £1,000 and/or imprisonment for up to 51 weeks.
The Cabinet Office tried to have the Notice revoked in an attempt to permanently withhold the unredacted documents from the Inquiry’s view. In its application, it argued that the material in question is “unambiguously irrelevant” as it relates to unrelated areas of policy, is personal and sensitive in nature, and/or otherwise does not relate to the work of the Inquiry and as such falls outside the Inquiry’s jurisdiction.
The Chair firmly dismissed the Cabinet Office’s application in a Ruling dated 22 May 2023 and the Cabinet Office now has until 4pm on 30 May 2023 to comply with the terms of the Notice. Her Ruling on the matter was published on the Inquiry’s website, along with copies of the Notice and the Cabinet Office’s application, on 24 May 2023.
The Ruling itself, which has been welcomed and praised by many, makes clear that the question as to whether evidence is relevant to the Inquiry is a question for the Inquiry alone, and not the party who holds it. The Chair suggests the Cabinet Office has misunderstood the scope of the Inquiry’s investigation and maintains that the evidence requested is of potential relevance. She states that although, at a glance, some communications may not appear relevant because they relate to non-pandemic issues, such material might acquire more importance if it suggests a minister was not dealing with the Covid emergency adequately because they were focussing, “perhaps inappropriately”, on those issues and not on the pandemic. There is, of course, long established public concern around the former Prime Minister’s apparent lack of interest in tackling the Covid emergency as it tragically unfolded.
The Chair also illustrates by reference to some of the unredacted material provided by the Cabinet Office in support of its application how what had been redacted (communications between the former Prime Minister and staff on enforcing the Covid regulations following the murder of Sarah Everard) would in her view classify as potentially relevant, thereby rejecting its assertion that all redactions were “unambiguously irrelevant”. The Chair described this as “not a promising start.”
The former Prime Minister then wrote to the Chair and asked that the Inquiry delay publication of the documents as he is in the process of finding new lawyers, and as such, is not legally represented at present. The timing of this development, almost simultaneous to Mr Johnson being referred to the police by the Cabinet Office for further potential lockdown rule breaks that were discovered during disclosure review of his diaries and notebooks for the Inquiry, cannot be ignored. He claims not to have seen the representations made by the Cabinet Office and complains that he has been put in an unfair position. The Inquiry refused this request, suggesting that if he had not been given information then that was a matter for him and his (now former) lawyers who had indicated that they were contacting those referred to in the Notice.
Had the Government been allowed in this case to withhold the evidence in the way it wanted, it would also have set a dangerous precedent for the future of this and other public inquiries. Government departments under the spotlight of investigation effectively arguing that they should be allowed to self-regulate and decide for themselves what evidence relating to its own actions the Inquiry does and does not have sight of was a very worrying prospect that would go against the core principles of transparency and independence crucial for the success of a public inquiry such as this. Such a precedent would be far too open to abuse, with the potential for Core Participants to hide incriminating evidence from independent inquiries into their actions and prevent the Inquiry from exposing the truth.
Saunders Law welcomes the robust response from the Chair and hopes the Inquiry takes a firm stance against any future attempts by the Government to withhold potentially relevant evidence from this Inquiry. It is understood there may be further applications made to prevent other Core Participants in the Inquiry from viewing the material requested in this instance.
Saunders Law is proud to be working with the Federation of Ethnic Minority Healthcare Organisations (“FEMHO”) and the Covid-19 Airborne Transmission Alliance (“CATA”), Core Participants to the Inquiry. We currently also represent Core Participants in the Grenfell Tower Inquiry, the Infected Blood Inquiry and the Undercover Policing Inquiry and can offer legal assistance and representation in all public inquiry cases.
Please contact us on 0207 632 4300 or fill in our online enquiry form if you would like our assistance and we would be happy to discuss your matter with you.