Ministers have just days to decide whether to take the extraordinary step of launching legal action against the Covid inquiry, as part of their battle to keep secret a slew of sensitive messages from senior figures including Boris Johnson and Rishi Sunak.
With just 48 hours remaining before the deadline to hand over unredacted messages and notes between Johnson and his ministers, the Observer understands the government is this weekend standing firm in its refusal to divulge the material.
Legal sources said it has only a matter of days to launch legal action to quash the demands from Heather Hallett, the former court of appeal judge and chair of the inquiry. She has warned that a failure to comply with her order would amount to a criminal offence punishable with a fine or imprisonment.
The battle is regarded as hugely important in shaping the inquiry, with the first public hearings just over two weeks away. It is set to see prominent Tories from across the last 13 years of government – including David Cameron and George Osborne – interrogated about the steps they took to prepare for a pandemic and the impact of austerity on the NHS’s resilience. Lawyers for the inquiry have revealed they have cast their net “widely and with a fine mesh”.
The Observer understands the Cabinet Office continues to argue that the inquiry does not have the power to compel it to hand over unredacted material that it deems “unambiguously irrelevant”. Its legal team maintains that disclosure would hamper future policy discussions and set a harmful precedent. It cites the Human Rights Act and data protection laws.
However, senior figures are already warning any challenge is unlikely to succeed. Dominic Grieve, the former Tory attorney general, said: “They’ve either got to hand the material over, or they have got to bring judicial review proceedings on the basis that her request is unreasonable. I think it is likely they will be given pretty short shrift if they turn up at court to argue that.
“Seeing that Heather Hallett is cleared to a very high level of security, why should it matter that she sees the entirety of [the material]? She will decide what is relevant.”
Charles Falconer, the former Labour lord chancellor, also told the Observer he believed Lady Hallett would “unquestionably” win. “It’s completely wrong that the Cabinet Office – the heart of government – is trying to prevent the chair of the Covid inquiry from seeing material,” he said. “She is very highly respected. She would not have insisted unless she thought she needed this material. [The government] should respect her and her inquiry and not stand in her way.”
Correspondence involving more than 40 of the most senior figures in Johnson’s government is covered by Hallett’s ruling. It includes WhatsApp messages, diaries and notebooks from Johnson, but also communications from former No 10 adviser Dominic Cummings, Liz Truss, Dominic Raab, who was deputy PM at the time, Matt Hancock, the then health secretary, and the cabinet secretary, Simon Case.
As chancellor during the pandemic, Sunak will be a crucial figure. His correspondence will be pored over in relation to the “eat out to help out” scheme. At the time, some experts feared it would help Covid to spread.
A judicial review of Hallett’s demand must be brought within 14 days of her ruling. Legal sources said they believed the government had until 5 June to lodge a review unless there were “exceptional circumstances” for a further delay.
The inquiry is likely to be so vast that there is an expectation it will be suspended during the next general election campaign, when its proceedings could raise major problems for the Conservatives. Sources close to the inquiry said it would inevitably have to be paused given the political sensitivity of the issues before it.
The legal standoff emerged soon after new allegations emerged that Johnson may have breached lockdown rules at Chequers. The gatherings, mentioned in entries in his ministerial diary, were referred to the police by the Cabinet Office. Johnson is already awaiting the results of parliament’s privileges committee over whether he misled MPs about lockdown gatherings.
A furious Johnson has rejected the latest allegations as “absolute nonsense”. “It’s ridiculous that elements in my diary should be cherry-picked and handed over to the police, to the privileges committee, without even anybody having the basic common sense to ask me what these entries referred to,” he said. “None of them constitute a breach of the rules during Covid.”
A battle between the inquiry and the Cabinet Office has been raging for weeks behind closed doors. It has now emerged that the inquiry used its significant legal powers, under section 21 of the Inquiries Act 2005, to demand unredacted documents. The Cabinet Office refused, claiming only “unambiguously irrelevant” material had been removed and that the inquiry’s demands were unlawful.
Hallett then issued a ruling rejecting those protests, arguing it was for the inquiry to decide what could be relevant. In an ominous development for the government, she said she had seen information regarding discussions between Johnson and his advisers about the Metropolitan police’s enforcement of Covid regulations following the murder of Sarah Everard. She said the information had originally been redacted.
The Cabinet Office told the Observer it was sticking by its position that only relevant material had to be handed over. A Cabinet Office spokesperson said: “We are fully committed to our obligations to the Covid-19 inquiry. As such, extensive time and effort has gone into assisting the inquiry over the last 11 months. We will continue to provide all relevant material, in line with the law, ahead of proceedings getting underway.”
A spokesman for Johnson said: “We have and will continue to disclose all relevant material to the inquiry.”
