In the tug of war over Boris Johnson’s WhatsApp messages, who is likely to win?

The chair of the inquiry into the government’s response to the pandemic, Baroness (Heather) Hallett, has extended the deadline she set for the Cabinet Office – and in effect for Boris Johnson – to hand over unredacted documents including 24 of Johnson’s notebooks, his diaries and his WhatsApp messages. Originally they were due by 4pm on Tuesday 30 May, but they must now be submitted by Thursday 1 June.

Both the Cabinet Office and Johnson are resisting handing over the complete set of papers and electronic data, on the grounds that some of the contents are not relevant to the inquiry.

Why the delay?

Rishi Sunak and his colleagues are refusing to deliver the comprehensive evidence that Hallett is demanding. The Cabinet Office has also said it doesn’t possess the relevant WhatsApp messages. Johnson does have them, but is proving even more obdurate than the government (which he is threatening to sue at public expense if it does hand too much information to Hallett’s inquiry). So the delay may help both sides to come to a compromise about disclosure, and also time to actually find and prepare all the material in question.

Can Hallett force disclosure?

Yes, up to a point. Section 21, part 2, of the Inquiries Act 2005 gives a chair statutory powers as follows: “The chairman may by notice require a person, within such period as appears to the inquiry panel to be reasonable – (a) to provide evidence to the inquiry panel in the form of a written statement; (b) to provide any documents in his custody or under his control that relate to a matter in question at the inquiry; (c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.”

Criminal sanctions – a fine, or a prison sentence of up to one year – can be imposed if the material is withheld or destroyed (which may be an option for Johnson if it’s compromising enough).

The point at issue is who decides what material is relevant to the inquiry. Here, there is a complete absence of trust. Johnson and ministers think Hallett or her team will leak it; Hallett seems unwilling to accept at face value what she is told about the evidence.

Hallett maintains it is up to her to say what’s relevant, and to specify her needs. She argues that the law makes it her duty to collect evidence with the potential to be useful in meeting the inquiry’s wide terms of reference. These include how the government was functioning – a very broad vista.

However, Hallett has conceded that matters of national security may be omitted, and that the Cabinet Office may submit a “statement of truth” testifying that it does not hold certain missing items, such as Johnson’s notebooks. Beyond that, there’s no sign of agreement. Judicial review seems a likely next step.

What can Johnson or the Cabinet Office do?

Two things. First is to shred the evidence and take the consequences – quite a revolutionary move in a nation that likes to think itself under the rule of law. If such an act were to be proved to have taken place, it might also see Johnson put behind bars, another Trumpian feature of this story.

Second, any of the parties could seek a judicial review, which would mean further delay and uncertainty. Hallett, on behalf of the inquiry, might take the case to the High Court. In extremis, court officials – bailiffs – could raid government offices and Johnson’s residences. Criminal sanctions would still apply.

Is there an establishment plot to ‘get’ Brexiteers, and especially Johnson?

No. The idea that this is some “coup” organised by Rishi Sunak and his colleague Oliver Dowden, the deputy prime minister, is popular in some circles on the right, confected in varying flavours of fantasy. Some think it smacks of an attempt to reverse Brexit; others cite shadowy “globalist” forces.

The truth is that Johnson is the author of his own misfortunes. Had he abided by the rules, he’d most likely still be in power now.

Does this affect the separate investigation by the House of Commons privileges committee?

Not directly. The committee is dealing with the allegation that Johnson misled parliament, whether accidentally, recklessly or deliberately, about breaches of Covid rules in Downing Street and the Cabinet Office. The latest revelations focus more on activities at Chequers, which Johnson didn’t discuss in the chamber.

Nonetheless, in the spirit of the moment, the lack of transparency and candour about non-work gatherings at the prime minister’s country house doesn’t help Johnson’s case. In the next few weeks, the committee will decide whether Johnson broke the Commons convention and abused parliamentary privilege, and, if he did, what sort of nominal punishment he should receive. A suspension from the House of more than 10 sitting days could see him ousted from parliament by the autumn.

Are there any electoral implications?

The only direct one is that the current imbroglio will add to any anti-Johnson momentum that develops if the privileges committee does indeed force a recall petition in his seat in Uxbridge. Johnson could choose to fight the seat, which on current poll ratings he’d probably lose. Alternatively, he could take the opportunity to abandon Uxbridge, go “on the chicken run” and secure a much safer seat, one he’d likely retain for his party even under present voting trends. He’s still popular in many constituency associations, and would have little difficulty in winning the candidature.

Indirectly, though, having Johnson continually in the headlines hurts Sunak and Jeremy Hunt’s attempts to present their government as (yet another) fresh start, and stirs up uncomfortable memories of the irresponsible behaviour of those in No 10 during lockdown. Voters don’t like divided and incompetent parties, and the current row hardly helps the Tories to present an image of unity and effectiveness.

Labour’s attack line is that a cover-up is in progress. In the words of Angela Rayner: “It now appears that vital evidence has gone missing. It must be found and handed over as requested if the whiff of a cover-up is to be avoided and bereaved families are to get the answers they deserve.”

What does it mean for the Conservative Party?

It’s a further cause of friction between the “Bring Back Boris” faction and the current leadership, were any needed after Johnson was deposed in a mass-resignation revolt by his ministers last July. Sunak was one of the prime movers, as chancellor, and has been derided by the Johnson camp as a “snake” ever since. Various “stab in the back” conspiracy theories have emerged, among them the suggestion that Sunak was manoeuvring to oust Johnson long before Partygate (which Sunak was also fined for) and the Chris Pincher scandal finally finished Johnson off.

The Tories are obviously bitterly divided over principles, policy and personalities. Having seen two leaders defenestrated inside a year, Johnson’s allies probably won’t get as far as removing Sunak from power before the election, but they are threatening to destabilise the government unless the prime minister finds a way to get Hallett to back off. This is something Sunak may be either unwilling or unable to do, or both. The Tory civil war, with Brexit as the abiding casus belli, looks set to intensify.