Judges deny central department’s request for judicial review meaning that former prime minister’s messages must be provided to ongoing inquest, with Labour claiming urging government to ‘hand over the evidence’

The Cabinet Office has lost a legal challenge to withhold former prime minister Boris Johnson’s unredacted WhatsApp messages from the Covid inquiry, after the department previously claimed they were “unambiguously irrelevant”.

In a ruling released yesterday, Lord Justice Dingemans and Mr Justice Garnham dismissed the Cabinet Office’s request for judicial review of a previous ruling to force the department hand over messages from figures at the top of the government during the pandemic, including the former prime minister and members of his Cabinet. 

The High Court said the Cabinet Office now must give all documents asked for by Baroness Heather Hallett, the Covid inquiry’s chair. Baroness Hallett gave a section 21 notice to request all of the documents after the government initially refused to hand them over.

The court ruled: “In our judgment the fact that the section 21 notice will yield some irrelevant documents does not invalidate the notice or mean that the section 21 [notice] cannot be lawfully exercised.”

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The government said it “supports the important and necessary work of the inquiry” into the government’s handling of the Covid-19 pandemic, and will “comply” with the ruling. The government added it accepted the order with “regret” after it questioned whether the inquiry had the power to “compel” senior politicians to hand over messages which it claimed were “unambiguously irrelevant”.

“The request for unambiguously irrelevant material goes beyond the powers of the  inquiry,” it said, in a statement. “Individuals, junior officials, current and former ministers and departments should not be required to provide material that is irrelevant to the inquiry’s work. It represents an unwarranted intrusion into other aspects of the work of government. It also represents an intrusion into their legitimate expectations of privacy and protection of their personal information.”

Ahead of the Covid-19 inquiry, Johnson handed over “all” of his WhatsApps and notebooks from his time in Downing Street during the pandemic to the inquiry panel. His spokesperson said Johnson wanted the Cabinet Office to do the same.

Angela Rayner MP, Labour’s deputy leader and shadow chancellor of the Duchy of Lancaster, claimed the Prime Minister Rishi Sunak had been “wasting time and taxpayers’ money” while fighting legal battles.

“After this latest humiliating defeat, the prime minister must accept the ruling and comply with the Inquiry’s requests for evidence in full,” she added. “The public deserve answers, not more attempts by the prime minister to undermine the Covid Inquiry. There can be no more excuses for concealing the truth. It’s time to hand over the evidence.”

Guidance on the use of WhatsApp – and all other non-corporate communication channels, such as webmail accounts – by ministers and officials was recently updated, for the first time in a decade. Usage is now, effectively, completely prohibited for discussing anything above government’s lowest tier of security classification and, even in these cases, users are warned that they must “be prepared to defend your choices”.

The amendments to the guidance were made following several high-profile cases in the past couple of years of ministers using webmail and WhatsApp to communicate on official matters, including the response to the coronavirus pandemic and immigration policy.

The Information Commissioner’s Office conducted a year-long investigation, which concluded with a report that warned of the “systemic risks” that had been created by government’s use of private messaging systems. The data regulator told government to conduct its own review and use the findings to update the existing 10-year-old guidelines.