Covid inquiry: Government will ‘probably lose legal case’, says minister

The government is likely to lose its legal case against the Covid inquiry, a government minister has said.

It comes after the government said it would seek a judicial review over the inquiry’s demand that it submit Boris Johnson’s unredacted WhatsApp messages.

Speaking on BBC Question Time, science minister George Freeman said he had “very little doubt” a court would find it should hand over the documents.

He added it was “worth testing” whether officials had a right to privacy.

On Thursday, the government missed a 16:00 BST deadline to submit messages sent between Mr Johnson and 40 other ministers and officials during the pandemic.

The Cabinet Office – which supports the prime minister in running the government – has argued many of the messages are not relevant and that to hand them over would compromise ministers’ privacy and hamper future decision-making.

Baroness Hallett, the retired judge and crossbench peer who is chairing the inquiry, has said it is up to her to decide what material is relevant.

Asked whether he thought the government would win the case, Mr Freeman told the BBC he thought the “courts will probably take the view” that Lady Hallett is entitled to decide “what evidence she deems relevant”.

He added that “people’s privacy is really important” and that the question of how private correspondence should be handled was a “point worth testing”.

“I would like to see a situation where the inquiry says, ‘Listen, we will wholly respect the privacy of anything that’s not related to Covid. We will redact it’,” he said.

The challenge is thought to be the first time a government has taken legal action against its own public inquiry.

Mr Johnson has said he has given his messages to the Cabinet Office and would be “more than happy” for them to be passed to the inquiry unredacted.

The former prime minister has not handed over any messages from before April 2021 – more than a year into the pandemic – because his phone was involved in a security breach and has not been turned on since, his spokesman said.

He has written to the Cabinet Office to ask whether technical support can be given so the content can be retrieved without compromising security, the spokesman added.

Dame Deirdre Hine, who led the review into the 2009 swine flu outbreak, said the government taking legal action would be “most ill-advised”.

She told BBC Radio 4’s Today programme: “I think this is unwise on the part of the government and they have no right to withhold the documents.”

Lord Gavin Barwell, who worked as chief of staff to former prime minister Theresa May, said he thought the government was making a “bad mistake” by not handing over the full Whatsapp messages.

“We’re having the enquiry to give people confidence we’re getting to the truth. And if the government is controlling what the enquiry can and can’t see, then people are not going to get confidence in the outcome,” he told the Today programme.

The saga comes just weeks before the inquiry – tasked with identifying lessons from how the pandemic was handled – is due to hold its first public hearings.

Lobby Akinnola, from the Covid-19 Bereaved Families for Justice group, expressed exasperation at the government’s decision to bring the challenge and said he feared it was part of an attempt to render the inquiry “lame”.

“I’m frustrated, I’m angry,” he told the BBC’s The World Tonight, adding that “we’re trying to understand what went wrong so we can prevent it happening again and that…is what the government is hindering.”

Elkan Abrahamson, the lawyer representing the group, said the refusal to hand over the material “raises questions about the integrity of the inquiry and how open and transparent it will be if the chair is unable to see all of the material”.

Opposition parties have also urged the government to comply with the inquiry’s requests.

Labour’s deputy leader, Angela Rayner, described the legal challenge as a “desperate attempt to withhold evidence” that would serve “only to undermine the Covid Inquiry”, while the Liberal Democrats called it a “kick in the teeth for bereaved families who’ve already waited far too long for answers”.