Boris Johnson – latest: Ex-PM goes over Sunak’s head to send unredacted WhatsApps ‘directly’ to inquiry

The government looks set for unprecedented legal battle with officials in charge of the Covid public inquiry over the release of unredacted WhatsApp messages and diaries belonging to Boris Johnson.

In a showdown over the ex-PM’s communications with 40 top officials, the Cabinet Office has until 4pm on Thursday to respond to the demand from Lady Hallett’s public inquiry into the Covid crisis.

The deadline has been extended from Tuesday, after officials claimed they do have all the documents demanded. The inquiry was told the Cabinet Office “does not have in its possession either Mr Johnson’s WhatsApp messages or Mr Johnson’s notebooks”.

Delayed deadline aside, there is little sign that Rishi Sunak’s government is willing to shift from its position that the department has no duty to disclose “unambiguously irrelevant” material.

Reports indicate that the government is “unlikely” to back down and hand over Mr Johnson’s material – worried about privacy issues and the precedent it would set for future ministers trying to discuss policy in confidence.

So what happens if the Sunak government refuses to comply? Could government officials be liable to criminal proceedings? Could Mr Sunak and his ministers themselves be in serious trouble?

My colleague Adam Forrest reports:

Tensions between Boris Johnson and Rishi Sunak became “basically untenable” before the downfall of the former prime minister’s government, Guto Harri has claimed.

Mr Johnson’s former head of communications said Mr Sunak would not have “lasted the summer” if the government had not “imploded”.

On his Global Player Podcast Unprecedented, Mr Harri said tensions came to a head as Mr Sunak refused to cancel a planned increase in corporation tax.

“On that occasion, Rishi Sunak, dug in and refused to come up with a growth plan, refused to cancel the planned hike in Corporation Tax and insisted on hitting energy companies with a Windfall Levy, that Boris didn’t want to do,” he said.

Mr Harri added: “Had the whole government not imploded shortly afterwards, I doubt the Chancellor would have lasted the summer.”

Tobias Ellwood has joined some senior Tories in calling for Rishi Sunak to sanction the handover of requested material – Boris Johnson’s WhatsApps and notebooks – to the Covid Inquiry.

Mr Ellwood told Sky News it was “right for the Cabinet Office to stall a little bit and ask questions about the validity of handing all this information over” but added: “I personally have faith in Lady Hallett, a formidable QC, to look at all the information.”

Asked if Mr Sunak should have the material handed over, Mr Ellwood said: “I think he should [hand it over] … I have faith in Lady Hallett, looking over all the information that Boris Johnson might provide and weeding out what’s necessary, what’s relevant, and publishing only that which is pertinent to the inquiry itself rather than everything else.”

Boris Johnson said he was “epileptically bored with Covid” in an “almighty row” with Sajid Javid before the government ended free testing last April, it is claimed.

The former prime minister told Mr Javid Covid was no longer killing people, describing it as “a matter of stupendous irrelevance”, according to his then-head of communications.

Guto Harri said Mr Johnson wanted to channel the £2billion a month being spent on testing into infrastructure projects such as nuclear power stations, railways and wind farms.

But Mr Javid believed the country risked “disarming when the enemy is still lurking”, Mr Harri said.“There was an almighty row,” Mr Harri claimed in his Global Player podcast Unprecedented.

The former BBC journalist said: “Boris, at the time, declared himself ‘epileptically bored with Covid. What people are getting now is not killing them,’ he thought. ‘It’s a matter of stupendous irrelevance, as long as we have a good pair of eyes in the crow’s nest, so we will not miss another iceberg’.

“He carried the day on that occasion and saved a fortune. But that dream he had of channelling that money into new infrastructure, into nuclear power stations, offshore wind farms, railways, and all of that did not last because pretty soon, the UK, along with the rest of the world, was crashing out of Covid into a cost-of-living crisis.”

Former Supreme Court justice Lord Sumption also said attempts to withhold the messages were likely to fail – saying he did not think the Cabinet Office’s arguments would “cut much ice” in the courts.

Lord Sumption said that under the law the “ultimate judge” of whether the material ought to be disclosed was the inquiry chair.

“I frankly can’t see the courts quashing her decision,” he told the BBC’s 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 that all they will achieve in resisting is to make it look like they are hiding something.”

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.

Lord Saville, who chaired the official inquiry into Bloody Sunday, said Lady Hallett should decide what is relevant to the Covid-19 inquiry.

“I cannot see any downside in her as a very senior and respected judge seeing material that would otherwise be private,” Lord Saville said.

The former Supreme Court justice said if the government misses a 4.00pm deadline to hand material to Lady Hallett it could lead to a “rather expensive” judicial review. But Lord Saville said if it was deemed urgent, “courts could organise themselves to hear it within a matter of days”.

He told the BBC: “In my view, prima facie at least, it is Lady Hallett, she is in charge of the inquiry, one of her duties is to do a thorough job, and it is for her to decide whether something is relevant or not.

“If she looks at something and decides it’s not relevant, then there is no reason to publish it.

“If you are going to show it to somebody like Lady Hallett, I cannot think of anyone better placed to be able to form a judgement. And I cannot see any downside in her as a very senior and respect to judge seeing material that would otherwise be private.”

Boris Johnson’s spokesperson said on Wednesday: “All Boris Johnson’s material - including WhatsApps and notebooks - requested by the Covid inquiry has been handed to the Cabinet Office in full and in unredacted form.

“Mr Johnson urges the Cabinet Office to urgently disclose it to the inquiry.

“The Cabinet Office has had access to this material for several months. Mr Johnson would immediately disclose it directly to the inquiry if asked.

“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.”

The request was made under section 21 of the Inquiries Act 2005, and in a ruling last week, Lady Hallett rejected the argument that the inquiry’s request was unlawful and said the Cabinet Office had “misunderstood the breadth of the investigation”.

A Cabinet Office spokesperson said: “We are fully committed to our obligations to the Covid-19 inquiry.

“As such, the Cabinet Office alone has already provided upwards of 55,000 documents, 24 personal witness statements, eight corporate statements and extensive time and effort has gone into assisting the Inquiry fulsomely over the last 11 months.

“However, we are firmly of the view that the inquiry does not have the power to request unambiguously irrelevant information that is beyond the scope of this investigation.

“This includes the Whatsapp messages of Government employees’ which are not about work but instead are entirely personal and relate to their private lives.”

The government faces a deadline to either release Boris Johnson’s unredacted messages and diaries to the Covid-19 inquiry or face a legal dispute, with an extension due to come to an end on Thursday.

The Cabinet Office had claimed it did not have access to Mr Johnson’s WhatsApp messages and private notebooks ahead of an earlier deadline on Tuesday.

But the former prime minister said on Wednesday that the material has been handed over to the government, and he urged the Cabinet Office to pass the contents on to Baroness Hallett’s official inquiry.

The Cabinet Office has confirmed it has received the information from Mr Johnson and officials are looking at it, but has continued its objection to releasing “unambiguously irrelevant” material.

The inquiry, set up to examine the pandemic and the government’s response, has set a deadline of 4pm on Thursday to hand over the information, having granted a 48-hour extension on Tuesday.

The documents include text conversations between Mr Johnson and high-profile figures, including Prime Minister Rishi Sunak.

Whitehall officials hope that a compromise can be reached before the 4pm deadline to avoid the need for a damaging legal fight with the inquiry.