Covid inquiry: Five things we learned at hearing as transparency row deepens

A preliminary hearing on Tuesday gave chair Lady Heather Hallett an opportunity to comment for the first time on the government's plan to take her inquiry to court. Credit: PA

By Lewis Denison, ITV News Westminster Producer

The Covid-19 inquiry, which Boris Johnson announced over two years ago, is finally starting to deliver some news - and much of it is about the former prime minister.

It's first substantive hearing is set to take place on June 13 but a preliminary hearing on Tuesday gave chair Baroness Heather Hallett an opportunity to comment for the first time on the government's plan to take her inquiry to court.

An unusual situation has played out in recent weeks, with the government rejecting a demand from the inquiry to see all of Mr Johnson's relevant documents, despite the former prime minister being happy to provide them.

The government was so keen to keep private what it says is "unambiguously irrelevant" material, which could contain personal information, that it applied to the Court of Appeal for approval redacting many of the documents.

A court battle is expected to take place either on June 30 or shortly after.

Despite Mr Johnson saying the inquiry would help the government "learn every lesson for the future" when he launched it in May 2021, many questions were left unanswered after Tuesday's hearing.

Here's what we learned:

The Covid-19 inquiry could soon see all Boris Johnson's unredacted material despite legal fight

News around the Covid-19 inquiry has recently been focused on Boris Johnson's WhatsApp messages - some of which are contained on a phone he's unable to switch on due to security concerns - his notebooks and diaries.

The Cabinet Office, which had been supporting Mr Johnson and other pandemic-era ministers through the inquiry, had provided the material with heavy redactions which Lady Hallett said needed to be removed.

But lead counsel to the inquiry Hugo Keith KC revealed Lady Hallett would soon have access to it all.

He explained that Mr Johnson had already provided WhatsApp messages from his current phone and was being assisted downloading information from his previous device.

The lawyer added that material the ex-PM had previously given to the Cabinet Office would soon be returned and passed to the inquiry.

"So the concluding point is we will shortly gain access to all the material on an unredacted basis," Mr Keith said.

But a lawyer speaking on behalf of the Cabinet Office said the government department is still considering whether to provide the inquiry with Mr Johnson's material.

Nicholas Chapman, representing the Cabinet Office, told the UK Covid inquiry that the department "reserves its position" to redact Mr Johnson's notebooks and WhatsApp messages.

The Covid inquiry chair said: "The Cabinet Office is in possession of Mr Johnson's notebooks.

"But because of the point that is going to judicial review, even though Mr Johnson himself has said he would reveal them to the inquiry without redaction, the Cabinet Office is going to apply redactions to somebody else's material. Have I got that right?"

Mr Chapman said: "The position is that the Cabinet Office is working out its position."

Lady Hallett gave the Cabinet Office until the end of the week to confirm its position on whether the department will look to redact Boris Johnson's notes and WhatsApp materials.

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Inquiry chair says she decides what's relevant

Inquiry chair Baroness Hallett refused to comment on the situation regarding the former prime minister's documents in her first remarks since the government decided to launch legal action.Lady Hallett said she would be making "no further comment" on the Cabinet Office's legal challenge due to "pending" litigation but insisted it is she who decides what is relevant to the inquiry.The inquiry chair 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.

"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."

Downing Street said the government is "willing to agree another way forward" when asked whether it is committed to going ahead with legal action against the Covid inquiry.

Mr Sunak's official spokesman told journalists: "You heard from the minister that we remain hopeful and willing to agree together the best way forward.

"Obviously we have explored other possibilities for resolution previously. So obviously we continue to speak to the inquiry. And as I say, we are willing to agree another way forward."

The Foreign Office and Cabinet Office have taken a different approach to the Department for Health

Mr Keith said the Cabinet Office and the Foreign Office had both submitted correspondence but had removed elements beforehand, in stark contrast to the Department for Health and Social Care, which had made a “much fuller disclosure”.

“The FCDO has supplied the inquiry with potentially relevant WhatsApps from two of its special advisers, many with extensive redactions made on the basis of relevance.

“May we make clear that we expect them to provide unredacted WhatsApp material without delay if, of course, the judicial review claim is dismissed?

“It may be worth pointing out that the Department for Health and Social Care by contrast has to date provided much fuller disclosure, including Mr Hancock’s WhatsApp messages without any redaction at all for relevance being applied to that material.

“And so we would of course invite the Foreign Office and the Cabinet Office to pay close regard to the position adopted by the DHSC.”

Mr Keith called on the Cabinet Office to “remedy immediately all overdue disclosures” of potentially relevant material from WhatsApp, including from group and one-to-one conservations.

Another fight could be brewing over communications on Google Spaces

Mr Keith also said there had been a delay in gaining access to a shared government area stored on Google Spaces.

He said Google Spaces had been a “forum for key individuals to communicate during the response to the pandemic” and that it was agreed with the Cabinet Office that the area could hold relevant evidence to the inquiry.

But he said requests for access had seen “deadlines passed unanswered” before an update from the Cabinet Office was received, containing a schedule of what was stored on the areas and who had access.

He added: “While it is regrettable that so much time has elapsed before reaching this point, we are nevertheless grateful for that schedule.”

The inquiry has asked for the Google Spaces material to be made available without redactions.

“For obvious reasons, we maintain that … the Google Spaces material must be provided to the inquiry without redactions, without a relevancy review being undertaken by the Cabinet Office,” Mr Keith added.

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Questions have also been raised about Nicola Sturgeon's material

The inquiry has also demanded clarity on whether former first minister Nicola Sturgeon's WhatsApp messages were relevant after being told by lawyers acting on her behalf she did not have any relevant informal correspondence.

Aamer Anwar, lead solicitor for the Scottish Covid Bereaved group, said it should be a matter for inquiry officials to determine what information is considered relevant.

The group has made further legal submissions to the UK Covid Inquiry calling for all unredacted WhatsApp messages and other relevant materials to be provided.

In a statement, he said a request "should be made of Scottish ministers to provide to the inquiry any communications held by informal means in order that the primary relevance test can be carried out by this inquiry".

Mr Anwar said: "The government is and should be answerable to the people, this applies to both the Scottish Government as well as the UK government.

"We were advised by the Scottish ministers' counsel that Nicola Sturgeon has advised them she does not have such informal messages - i.e. WhatsApp messages.

"Today we have sought full clarity from the UK and Scottish Inquiry as to what has happened to Ms Sturgeon's WhatsApp messages, and why they are not being disclosed in their entirety.

"Ms Sturgeon and other Scottish ministers should be in no different of a position to that of Mr Johnston, Rishi Sunak or Matt Hancock, the job of establishing the relevance is a matter for this inquiry.

"We have said before and say it again, no individual, no matter how powerful, can be allowed to interfere with the pursuit of truth, justice and accountability in this inquiry. Those who lost their lives to Covid-19 deserve nothing less."