By Tony O’Reilly-
The chair of the COVID inquiry says it is up to her to decide what evidence is “relevant or potentially relevant” amid a legal row with the government over Boris Johnson’s WhatsApp messages.
Baroness Hallett said she won’t be withdrawing her order for the government to hand over unredacted material for her investigation, as she formally opened the COVID inquiry on Tuesday.
Her stance follows Johnson’s bypassing of the Uk government’s judicial review over her order to the Cabinet Office that it hand over all his unredacted WhatsApp messages, diary entries and other documents.
The former prime minister has already sent “all unredacted WhatsApps” directly to the inquiry, according to him- an act he did to show integrity in the matter, since he says he has nothing to hide.
The former prime minister said he would “like to do the same” with texts that are on an old mobile phone he stopped using due to security concerns in May 2021 – more than a year after the pandemic began.
He said he had asked the government for its help to turn on the device securely to hand over the material.
Hugo Keith KC, a counsel for the inquiry, told Baroness Hallett that Mr Johnson’s unredacted WhatsApp messages and notebooks were going to be compared with redacted copies provided by the Cabinet Office and that the inspection would begin this week.
He said the inspection “will allow your team to make its own assessment as to the redactions applied by the Cabinet Office and to satisfy ourselves and ultimately you of their appropriateness or otherwise”.
Mr Johnson’s locked former phone has also been handed to the government with the hope of obtaining his messages before May 2021, Mr Keith said.
“As has been widely reported in the media, an issue has arisen between the inquiry and the Cabinet Office as to who decides what is relevant or potentially relevant,” said Lady Hallett at a hearing on Tuesday.
She continued: “I issued a notice under Section 21 of the Inquiries Act 2005 – making it clear that, in my view, it is for inquiry chair to decide what is relevant or potentially relevant.”
On the request by the Cabinet Office that she withdraw the request for the Johnson material, Lady Hallet said: “I declined, and they are now challenging my decision to decline to withdraw the notice in the High Court, by way of judicial review.”
Hugo Keith KC – the counsel for the inquiry – revealed that Lady Hallett’s team would soon begin inspecting “unredacted” WhatsApps received direct from Mr Johnson in order to check them against the content provided by the government.
The lawyer said the inquiry team is “seeking to inspect” Mr Johnson’s unredacted WhatsApp messages dating from May 2021 next week, after the former prime minister submitted them to the inquiry himself.
Covid Era Conversations
The inquiry has also asked the Cabinet Office to switch on Mr Johnson’s old phone – which contains his Covid-era conversations from 2020 – saying it is up to the “appropriate personnel in government” to make sure that its contents can be downloaded.
Mr Johnson changed phones in May 2021 after it emerged that his mobile number had been publicly available online for 15 years. The inquiry has asked the Cabinet Office to make sure that if the old phone is switched on, “there will be no redactions made”.
It has also requested that the government to return Mr Johnson’s notebooks to him by 12 June to start a similar inspection process so it can “compare them to the redacted copies already provided by the Cabinet Office”.
Some tory members have been discontent with the former prime minister’s unilateral decision to do what most neutral observers consider the honourable thing, though some cynicism has bene expressed as to whether Johnson has indeed sent everything.
Commenting on the legal terrain, Baroness Hallett said: “As has been widely reported in the media, an issue has arisen between the inquiry and the Cabinet Office as to who decides what is relevant or potentially relevant.
“I issued a notice under Section 21 of the Inquiries Act 2005 making it clear that, in my view, it is for the inquiry chair to decide what is relevant or potentially relevant.”
She continued: “The Cabinet Office disagrees, claiming they are not obliged to disclose what they consider to be unambiguously irrelevant material. They invited me to withdraw the Section 21 notice. I declined.
“They are now challenging my decision to decline to withdraw the notice in the High Court by way of judicial review.
“With litigation pending and as the decision-maker, I can make no further comment.”
The Cabinet questions Baroness Hallett’s right to request irrelevant material. In submissions challenging the requests, cabinet representative said: “the power to compel production of documents and messages which are unambiguously irrelevant to the inquiry’s work”, and argued that requesting such material “represents an unwarranted intrusion into other aspects of the work of government”.
Ministers have confirmed that they expect an expedited High Court hearing to take place on or shortly after 30 June.
Mr Johnson’s locked former phone has also been handed to the government with the hope of obtaining his messages before May 2021, Mr Keith said.
“Neither Mr Johnson nor the inquiry has the technical expertise to ensure the contents of the phone can be downloaded safely and properly, particularly bearing in mind the overarching need to ensure no damage is done to national security.
“We have therefore agreed that this phone should be provided to the appropriate personnel in government for its contents to be downloaded.
“We have asked the Cabinet Office, in liaison with Mr Johnson and those government personnel, to obtain the phone without delay, to confirm in writing the process by which it will be examined and to give confirmation that it, like the diaries and the notebooks and the WhatsApps, will be accessed fully.
“That is to say, there will be no redactions made to the contents, other than in relation to national security, before we may view it.”
As well as receiving material from Mr Johnson, the inquiry has also received documents with redactions from two other individuals.
It said the Foreign Office had also supplied the inquiry with potentially relevant WhatsApps from two special advisers, with extensive redactions applied to parts that it deemed to be irrelevant.