Boris Johnson has thrown down the gauntlet to Rishi Sunak by handing over his unredacted WhatsApps and notebooks and urging the government to give them to the Covid-19 inquiry.
Heaping pressure on the prime minister ahead of Thursday’s 4pm deadline, the former Tory leader urged the Cabinet Office to “urgently disclose” the material to Baroness Hallett’s inquiry.
It comes as Mr Sunak’s government was warned that it would face an embarrassing defeat if it challenged the Covid inquiry in court in an effort to withhold Mr Johnson’s WhatsApp messages.
Senior Tories also urged Mr Sunak to end the row, saying it would be “less painful” to back down and hand over the Johnson files to Lady Hallett’s team.
A spokesperson for Mr Johnson said that “all” the material requested by the Covid inquiry “has been handed to the Cabinet Office in full and in unredacted form”. The Cabinet Office has had “access to this material for several months”, the former PM’s spokesperson added, but they made clear that Mr Johnson had provided all the requested material to the government today.
With the government continuing to signal that it will resist Lady Hallett’s demand for the messages, notebooks and diaries, the former PM’s team also warned that “Mr Johnson would immediately disclose it directly to the inquiry if asked”.
His spokesperson said: “While Mr Johnson understands the government’s position, and does not seek to contradict it, he is perfectly happy for the inquiry to have access to this material in whatever form it requires.”
They added: “Mr Johnson cooperated with the inquiry in full from the beginning of this process and continues to do so. Indeed, he established the inquiry. He looks forward to continuing to assist the inquiry with its important work.”
The Cabinet Office – which had told the inquiry it did not have all the material that was being demanded – has now confirmed it has received the information and said officials were looking at it.
It had earlier raised concerns about setting a precedent by handing over the requested documents in unredacted form.
But Sir Jonathan Jones KC, the government’s former legal chief, told The Independent that the “cards are stacked” against the Sunak government if the increasingly “bizarre” dispute goes to court.
“It’s a mess,” said the senior lawyer. “It’s likely the court will have to rule on it – it doesn’t seem either side is minded to back down. I’m not aware of any precedent for the government refusing to give information to a public inquiry it set up. It’s all pretty extraordinary.”
He added: “The powers of a public inquiry are wide. There is logic to the position the Covid inquiry is taking – that it has to see the material to decide on its relevance. The cards are stacked in favour of the inquiry. The bar for getting a court to strike down a request [from a public inquiry] is high.”
Former Supreme Court justice Jonathan Sumption also said that attempts to withhold the messages were likely to fail, explaining that he did not think the arguments put forward by the Cabinet Office would “cut much ice” in the courts. “I frankly can’t see the courts quashing [Lady Hallett’s] decision,” Lord Sumption told the BBC’s The World at One.
Arguing that going to court would be a “political mistake”, he added: “They are not going to succeed in a judicial review, so all they will achieve in resisting is to make it look like they are hiding something.”
SirJonathan said that if the Sunak government refused to hand over the Johnson material by the deadline, Lady Hallett’s team could either go to the High Court to seek an order, or launch a criminal lawsuit by arguing that the refusal to provide information violates the Inquiries Act 2005.
In her recent exchange of letters with the Cabinet Office, the chair of the inquiry pointed out that the failure of the government to comply could be a criminal offence, punishable with a fine of up to £1,000 or even imprisonment for a maximum of 51 weeks.
“Presumably [the Covid inquiry] would try to hold some senior figure in the Cabinet Office responsible,” said Sir Jonathan on the possibility of criminal proceedings, before describing the scenario as “extraordinary” and “the least likely outcome”.
The former Treasury solicitor said it was “quite likely” that the government would seek a judicial review before 4pm on Thursday in an effort to “test the validity” of Lady Hallett’s request.
Urging a rethink, Sir Jonathan said: “It would be quite a climbdown for the government to say it will provide information, but I think it should consider doing so to avoid extreme scenarios.”
No 10 has said that while there is nothing to stop Mr Johnson from handing any personal evidence directly to the inquiry, any “government-owned” material would need to be disclosed by the government.
The Covid inquiry would not be drawn on whether it could ask for and accept material directly from Mr Johnson if Thursday’s deadline passes without a climbdown from the Cabinet Office. A source said the inquiry would “cross that bridge if it comes to it”.
Former Tory cabinet minister Malcolm Rifkind told The Independent that Mr Johnson should be allowed to hand over his WhatsApp messages directly to Lady Hallett. “If he’s willing to do that, he should be able to do so. It’s his WhatsApp messages – not theirs [the Cabinet Office].”
Mr Rifkind also said a compromise could still be reached – suggesting that the government and Lady Hallett could agree on an “independent” broker to look over the messages and decide what should be redacted.
Senior Tory MP Caroline Nokes said the “reluctance” by the government to provide the WhatsApp messages and notebooks “seems a nonsense”. She told TalkTV there would be “less pain for the government if they hand [the material] over quickly”.
Senior Tory William Wragg, chair of the public administration and constitutional affairs committee, also urged the government to back down. “If the inquiry requests documents and info, then whoever it has asked should comply,” he told the BBC.
Historian Sir Anthony Seldon, who has chronicled Mr Johnson’s time in No 10, said it was a “simple no-brainer” that the messages should be handed over. “This event was so seismic, and the premiership of Boris Johnson was so catastrophic, we have to get out the full facts,” he told TalkTV.
With the deadline looming and Mr Sunak facing accusations of a “cover-up”, work and pensions secretary Mel Stride insisted that the government had “nothing to hide”. Mr Stride told Sky News that the inquiry already has “all the information that it is right for it to have”.
Meanwhile, an ally of Mr Johnson told The Independent that the former prime minister should sue the Cabinet Office following its recent referral to the police of information relating to possible breaches of the Covid rules at Chequers and No 10.
“If I was Boris, I would go legal and flush out any cover-ups,” they said. “I think the plotters have overplayed their hand in trying to destroy Boris, and their actions are beginning to unravel.”
