The row over Boris Johnson's WhatsApp messages continues as the government threatens to remove his legal funding, ITV News Political Correspondent David Wood has the latest
By Westminster Producer Lewis Denison and Multimedia Producer Rachel Dixon
Boris Johnson's could lose his legal funding for the Covid inquiry if he undermines the government - despite a top minister saying Johnson could say "whatever he wishes" when giving evidence to the committee.
This is the latest in an ongoing row about Mr Johnson's WhatsApp messages and whether they should be submitted as evidence to the Covid inquiry into the handling of the pandemic.
Committee members of the inquiry asked for the former PM's unredacted messages so they could investigate his communication during the pandemic.
Earlier this week Rishi Sunak rejected these demands - and began seeking legal action to keep them private.
But on Friday Boris Johnson handed over all his WhatsApp messages to the Covid-19 inquiry, bypassing the government, putting them in an awkward position.
In response ministers threatened to take away public funding for legal advice if he tries to “frustrate or undermine” the government’s position on the Covid-19 inquiry.
Speaking on Sunday, Robert Jenrick said: “If he wishes to send his documents or WhatsApp messages to them then he’s at liberty to do so.
“He can advance whatever arguments he wants to and make whatever statements he wishes in his witness statement to the inquiry," he said in an interview with Sky’s Sophy Ridge.
How did we get here?
Mr Johnson released a statement through his spokesman earlier this week saying he had shared all the material with the Cabinet Office - which is supporting ministers from the pandemic era through the Covid inquiry - and asked for it to be "urgently disclosed".
It comes after Lady Hallett issued a section 21 notice to the Cabinet Office under the Inquiries Act 2005, rejecting a request by the Cabinet Office to choose which elements of the material could be redacted.
The chair, who is a former Court of Appeals judge, said the Cabinet Office had “misunderstood the breadth of the investigation”.
She extended an initial deadline to share the material by 48 hours, giving ministers until 4pm on Thursday to either hand it over or explain why they could not.
Labour said refusing to share the material would lead people to believe the government had something to hide. Mr Sunak denied there was a cover-up, saying the government was cooperating with the inquiry while acting "in a spirit of transparency and candour".
The Cabinet Office said it would share Mr Johnson's documents but insisted they needed to be redacted to exclude "national security sensitivities and unambiguously irrelevant material".
They will be shared with the Covid inquiry in batches as the Cabinet Office did not have enough time to redact them for national security purposes.
Labour accused the PM of a “cover-up” over the move to seek judicial review.
The party’s deputy leader Angela Rayner said: “While the rest of the country is focused on the cost-of-living crisis, Rishi Sunak is hopelessly distracted with legal ploys to obstruct the Covid inquiry in a desperate attempt to withhold evidence.
“After 13 years of Tory scandal, these latest smoke-and-mirror tactics serve only to undermine the Covid inquiry. The public deserve answers, not another cover-up."
Chair of the inquiry, Baroness Heather Hallett, had threatened the government with legal action over a refusal to share all the material and imposed a deadline of 4pm today, but the PM was concerned about sharing what the Cabinet Office said was irrelevant.
And despite his former boss piling on the pressure to share all the documents - which include text conversations between the ex-prime minister and high-profile figures, including Mr Sunak - the government has decided against it.
The Cabinet Office, in a letter to the Covid-19 inquiry, said it was bringing a judicial review challenge “with regret” but that there were “important issues of principle at stake”.
It said: "The Cabinet Office has today sought leave to bring a judicial review.
"We do so with regret and with an assurance that we will continue to cooperate fully with the inquiry before, during and after the jurisdictional issue in question is determined by the courts."
Why does the government not want the messages to go public?
The government is seeking a judicial review of Baroness Hallett's notice, questioning whether the demand for the documents falls within the scope of her inquiry.
While Mr Johnson is at the centre of the row at the moment, the Government is trying to avoid having to hand over what it sees as irrelevant messages from other ministers.
This could include evidence from the Prime Minister, who was chancellor during the pandemic and it is understood this could bring up issues with the Eat Out To Help Out policy.
The Cabinet Office is to argue the application was brought “because there are real concerns that individuals, junior officials, current and former ministers and departments should not be required to provide material that is irrelevant to the inquiry’s work”.
“That concern, to ensure that a proper line between relevant and irrelevant material, is a legitimate concern in principle and in its own right, especially given that these are compulsory powers," the Cabinet Office said.
“It is sharpened by the fact that irrelevant material contains ‘references to personal and family information, including illness and disciplinary matters’ and ‘comments of a personal nature about identified or identifiable individuals which are unrelated to Covid-19 or that individuals’ role in connection with the response to it’.”
The Cabinet Office argues that material may be sensitive because of “personal privacy, to do with other aspects of the work of government, or simply to do with the informal nature of the sort of communication that occurs on WhatsApp”.
What would happen in court?
As the chair of a statutory inquiry, Baroness Hallett has the power to compel witnesses with relevant evidence to provide it and attend hearings under section 21 of the Inquiries Act.
If the witness - in this case the Cabinet Office - refuses to comply, then the chair can apply to the High Court for a witness summons to enforce the demand.
Failure to comply could lead to prosecution and a potential fine or jail term for an individual found guilty of the offence.
What happens now that Boris Johnson has handed in his messages?
The former PM has been warned about circumventing the government in this way, in a letter sent by Cabinet Office lawyers last week, as shown in the Sunday Times.
“The funding offer will cease to be available to you if you knowingly seek to frustrate or undermine, either through your own actions or the actions of others, the government’s position in relation to the inquiry unless there is a clear and irreconcilable conflict of interest on a particular point at issue,” it said.
They added that funding would “only remain available” if he complied with conditions such as sending the Cabinet Office “any witness statement or exhibit which you intend to provide to the inquiry so that it can be security checked by appropriate officials”.
The Cabinet Office said the letter was “intended to protect public funds” so taxpayer-funded lawyers are not used for any other purpose than aiding the inquiry.
Mr Jenrick said on Sunday: “We want to hand over to the Covid Inquiry absolutely anything that has anything to do with Covid-19 or the purpose of the inquiry.
“Where there’s a point of difference, is that we don’t think it’s sensible or reasonable to hand over documents or messages that have nothing whatever to do with Covid-19.”
As a former lawyer, he said, the “normal way to do this is to set reasonable parameters” but not to ask for things “wholly unrelated”.
He insisted the government has the “highest regard” for inquiry chairwoman Baroness Heather Hallett and is not asking for “special treatment”.
“I hope this can be resolved indeed even before the matter gets to court,” he added.
The Covid-19 inquiry said further information on what comes next would be provided at next week's preliminary hearing at 10.30am on Tuesday, June 6.
Who is likely to win in court ?
Legal experts have suggested the Cabinet Office would have a weak case given the wide remit set out in Lady Hallett’s terms of reference.
Former Supreme Court judge Lord Sumption suggested the government would lose any legal challenge over the disclosure of Mr Johnson’s documents to the Covid-19 inquiry.
He told BBC Radio 4’s World At One programme on Wednesday that inquiry chairwoman Baroness Hallett’s terms of reference were “very widely drawn” and the Inquiries Act gave her the power to demand the documents.
“If she concludes it is in the public interest that something within her terms of reference should be disclosed, I frankly can’t see the courts quashing her decision,” Lord Sumption said.
The retired judge said he sympathised with Lady Hallett’s demand for WhatsApp messages, “which history suggests are the most indiscreet message that anyone ever puts in writing”.
But, he added: “There are problems over ministers not being able, confidentially, to have conversations – and WhatsApp exchanges really are conversations – because the quality of government suffers if they feel inhibited about talking to each other confidentially.”
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The decision to seek a judicial review is a “cowardly attempt to obstruct” the Covid-19 public inquiry, the Liberal Democrats have said.
The party’s deputy leader Daisy Cooper said: “This cowardly attempt to obstruct a vital public inquiry is a kick in the teeth for bereaved families who’ve already waited far too long for answers.
“Rishi Sunak’s promise to govern with integrity and accountability has been left in tatters.
“The government is delaying the inquiry even further and clogging up court time, all to prevent Sunak and his Conservative colleagues from having to release their messages.”
Boris Johnson's WhatsApp do not preceed May 2021 due to security breach
Senior civil servant Ellie Nicholson said the Cabinet Office had received Mr Johnson’s WhatsApp messages on Wednesday afternoon and was reviewing the material “for national security sensitivities and unambiguously irrelevant material, and appropriate redactions are being applied”.
The material does not include messages from before May 2021.
Ms Nicholson’s statement said: “I understand that this is because, in April 2021, in light of a well-publicised security breach, Mr Johnson implemented security advice relating to the mobile phone he had had up until that time.
“It is my understanding that Mr Johnson has possession of that device, and that it is a personal device. On May 31, the Cabinet Office spoke to Mr Johnson’s legal representatives to ask them to check with Mr Johnson that he has possession of the phone, and to confirm this to the Cabinet Office.
“The Cabinet Office explained that if the phone could be passed to the overnment it could be assessed by security experts.
“On the morning of June 1, the Cabinet Office emailed to chase for a response. We have not yet received a substantive response. As the Cabinet Office is not, I understand, in possession of the phone, any material stored on the phone is not in the Cabinet Office’s possession or control.”
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