The government faces an uphill battle in its judicial review of Covid inquiry WhatsApps 

The row between the government and the Covid inquiry is set to end up in court. It centres on whether the government can be required to provide the inquiry with Boris Johnson's WhatsApp messages for the relevant period (and those of Henry Cook, one of his former advisers), along with Johnson's diaries and notebooks. 

There have been some twists and turns along the way. At one point, the Cabinet Office rather startlingly said it did not, in fact, hold the relevant documents at all (despite weeks of wrangling with the inquiry over their disclosure). Then the following day, Johnson (having previously decided to instruct new lawyers after the government and its legal team had referred him to the police for possible breach of Covid rules) said he had provided the Cabinet Office with all the materials, and thought they should be handed over to the inquiry.

The legal dispute is fairly straightforward

At the heart of the story is a fairly straightforward legal dispute about the scope of the inquiry's powers under the Inquiries Act 2005. The government maintains that much of the material the inquiry is seeking is "unambiguously irrelevant" to its terms of reference. Such material "would not assist the work of the inquiry... would be likely to be highly inefficient and an unnecessary waste of both time and resource". More fundamentally, the government says, irrelevant material "might be personal or sensitive for a variety of reasons", and parliament cannot have intended to impose such an "intrusive, compulsory provision". Examples given of such obviously irrelevant material are "discussion of matters relating to a person's family or private life (e.g. a child's music lesson), or about a personal matter such as an illness, or about an entirely unrelated matter of government".

The inquiry's chair, Baroness Hallett, however, takes the position that the entire contents of the documents she has requested are "of potential relevance to the lines of investigation that I am pursuing". She says that "in order to evaluate the response of the government and/or of any individual ministers to the pandemic, it may be necessary for reasons of context for me to understand the other (superficially unrelated) political matters with which they were concerned at the time... For similar reasons, I may also be required to investigate the personal commitments of ministers and other decision makers during the time in question". And Baroness Hallett considers that she, as chair of the inquiry, needs to see all the material in order to make the final judgment on relevance.

As neither the government nor the inquiry were prepared to back down from these diametrically opposed positions, it became clear that only a court could resolve the dispute. The government has said it is still happy to explore some kind of last-minute settlement, but it is difficult to see what form that could take.

The government’s decision to go to judicial review is very unusual

Hence the government has sought judicial review of Baroness Hallett's ruling requiring disclosure of the documents. It is very unusual for the government to be a claimant in a judicial review – normally it is the defendant. Plenty of people have noted the irony of a government which has often criticised the over-use of judicial review, and the willingness of interventionist judges to overrule government decisions, now seeking to rely on that same mechanism as a way of overturning a decision it doesn't like. And given the government's distinctly cool relationship with the European Convention on Human Rights (particularly reliance on Article 8, on right to privacy, e.g. in immigration cases), it is delicious to note the government's own reference to Article 8 in the Covid judicial review to protect the privacy of ministers and officials.

So it will be for the High Court to rule on the legal validity of the inquiry's request. The government needs "permission" to bring the judicial review (for which it needs to show an arguable case). It has asked the court to deal with both permission and, if permission is granted, the substantive case in a single "rolled up" hearing, as is quite normal in cases of urgency. The government has also sought "expedition" for the case so that the matter can be listed "for the first convenient date". That could be within weeks, or even as soon as next week. Depending on the outcome in the High Court, either side might seek to appeal to the Court of Appeal and even (at least in theory) onwards to the Supreme Court.

As a further twist, Boris Johnson offered to provide all his WhatsApp messages (at least from 2021 when he got a new phone) direct to the inquiry himself in unredacted form. If the inquiry has them via Johnson, it might be thought to render the government’s judicial review academic, at least in part. For now though, it is assumed the government will maintain its challenge on the point of principle. 

Who will win?

Predicting the outcome of any litigation is a bit of a mug's game. The legal issues here are novel, so there is no previous court decision to go by. So far the balance of legal commentary appears to favour Baroness Hallett's chances of winning the judicial review. She is, of course, herself an extremely senior former judge. On the other hand, the government has an excellent legal team headed by the vastly experienced first treasury counsel, Sir James Eadie KC, and has advanced a case that is as plausible as one would expect. 

But I think the government has an uphill task. Normally it wants the courts to defer to decision makers (generally, of course, ministers themselves) in their exercise of legal powers: in this case, that would mean deferring to Baroness Hallett. The context is of an inquiry, with deliberately wide terms of reference set by the government itself, designed to be independent (including of government), and exercising an important task in the public interest. The likelihood is that the court will say the inquiry chair should be the one to decide how she goes about it, and what material she needs to see for that purpose. But we will see quite soon.