Boris Johnson: What happens if WhatsApps aren't handed over?

The Cabinet Office is braced for a legal challenge with the COVID-19 inquiry over Boris Johnson's private messages.

AUSTIN, TEXAS - MAY 23: Former UK Prime Minister Boris Johnson looks on during a tour after a meeting with Gov. Greg Abbott at the Texas State Capitol on May 23, 2023 in Austin, Texas. Gov. Abbott met with Johnson to discuss economic development. (Photo by Brandon Bell/Getty Images)
Boris Johnson has handed his unredacted messages to the Cabinet Office – stripping it of one of its main defences. (Getty Images)

Rishi Sunak's government is braced for a legal challenge as the deadline to hand over Boris Johnson's private WhatsApp messages and papers to the COVID-19 inquiry looms.

The Cabinet Office has been given until 4pm Thursday to provide the documents, but it has resisted the idea of handing over scores of unredacted correspondence, arguing much of it is "unambiguously irrelevant".

Inquiry chair Baroness Hallett argued it should be up to her – not the government – to decide what is and isn't relevant to the probe into lockdown-breaking gatherings in Downing Street and elsewhere in Whitehall.

Former prime minister Johnson branded claims he took part in further rule-breaking during the pandemic as "a load of absolute nonsense", but on Wednesday he handed his unredacted messages to the Cabinet Office.

He called on the government to "urgently disclose" the material, thereby stripping it of its previous defence that it didn't have in its possession the messages and papers the inquiry was demanding and putting his successor Sunak in an awkward position.

Read more: What are the laws on dangerous dogs in the UK and how could they change?

LONDON, ENGLAND - MARCH 22:  A protester holds a sign outside parliament as Boris Johnson gives evidence to Partygate Committee on March 22, 2023 in London, England. The former prime minister attends a televised evidence session in front of the Commons Privileges Committee, which has previously suggested that Johnson misled Parliament in his statements about parties at Number 10 during the Covid-19 lockdown. (Photo by Dan Kitwood/Getty Images)
Protesters gathered outside parliament as Boris Johnson gave evidence to the Partygate Committee on 22 March. (Getty Images)

Whitehall officials are concerned about the wider precedent that will be set by handing over swathes of unredacted WhatsApp conversations, with fears that the inquiry will seek similar levels of disclosure from other senior figures – including Sunak himself.

This has led to accusations from Labour, the Lib Dems, and the former head of the civil service that Sunak is attempting to stage a "cover-up" to save other ministers from potential embarrassment.

As a potential legal battle over the inquiry looms, here's what could happen if the government doesn't comply.

What could happen if Boris Johnson's WhatsApp messages aren't handed over?

In theory, the government could be committing a criminal offence under the Inquiries Act if it doesn't comply with the deadline in full, according to Adam Wagner, a barrister at Doughty Street Chambers.

Those convicted of failing to comply with a Section 21 order, as stated in the act, face a fine of up to £1,000, 51 weeks in prison, or both. The Cabinet Office itself could be prosecuted as a body corporate.

Another potential option is that Baroness Hallett, chair of the COVID inquiry, could refer the matter to the High Court, which could then make an order on what to do next, Wagner told Sky News.

Read more: Police 'tell drivers potholes are good for slowing down speeding motorists'

TOPSHOT - Britain's outgoing Prime Minister Boris Johnson delivers his final speech outside 10 Downing Street in central London on September 6, 2022, before heading to Balmoral to tender his resignation. - British Prime Minister Boris Johnson formally tenders his resignation to Queen Elizabeth II on Tuesday, handing over power to Liz Truss after his momentous tenure dominated by Brexit and Covid was cut short by scandal. (Photo by Daniel LEAL / AFP) (Photo by DANIEL LEAL/AFP via Getty Images)
Boris Johnson survived the Partygate scandal, but was later forced to quit in September over his handling of the Chris Pincher scandal. (Getty Images)

"And then a third option is that the government could tell Baroness Hallett they're going to judicially review her – and they have until early next week to do that as it's 14 days from the decision that was taken," he added.

"And if they decide to judicially review her, it's unlikely that any enforcement action will be taken in the meantime. But that would be heard, I suspect, pretty quickly by the High Court."

Why is there an argument over redacted messages?

Downing Street has argued some material, such as personal messages or content unrelated to the pandemic, is "unambiguously irrelevant" to the inquiry and shouldn't be handed over.

The government has shown little sign of budging, with work and pensions secretary Mel Stride saying material will only be handed over "where it is appropriate".

Claiming it should be up to her to decide what is relevant to the probe, Baroness Hallett has said some “important passages” had been deemed “unambiguously irrelevant” by the Cabinet Office before later being cleared for release.

Read more: Rishi Sunak's supermarket price cap plan 'won't make a jot of difference', BRC says

Baroness Heather Hallett 2021
Baroness Heather Hallett says it shouldn't be up to the government to decide what information is relevant. (PA)

This included discussions between Johnson and advisers about the enforcement of COVID regulations by the Metropolitan Police during public demonstrations following the murder of Sarah Everard.

In a statement, COVID-19 Bereaved Families for Justice said: “It’s outrageous that the Cabinet Office think they can dictate to the inquiry which of Boris Johnson’s WhatsApp messages they can see.

“This inquiry needs to get to the facts if it is to learn lessons to help save lives in the next pandemic, so well done to Baroness Hallett for standing up to the Cabinet Office on this occasion.”

Read more: Health secretary Steve Barclay admits pledge to build '40 new hospitals' really means five

Former civil service head Lord Kerslake told BBC Radio 4’s Today programme: “There’s some cover-up going on here to save embarrassment of ministers, but there’s also the Cabinet Office fighting for a principle of confidentiality.

“I have to say I think they’re misguided on this situation. I actually think it would set a helpful precedent if Lady Hallett prevailed in this fight about the information.”

The prime minister’s official spokesman flatly denied the allegation of a cover-up.

He said there is no requirement to “permanently store or record every WhatsApp”, with messages related to decision-making instead copied over to the official record.

British Prime Minister Rishi Sunak arrives for the European Political Community Summit at the Mimi Castle in Bulboaca, Moldova, Thursday, June 1, 2023. Leaders are meeting in Moldova Thursday for a summit aiming to show a united front in the face of Russia's war in Ukraine and underscore support for the Eastern European country's ambitions to draw closer to the West and keep Moscow at bay. (AP Photo/Vadim Ghirda)
Rishi Sunak's office has flatly denied claims of a 'cover-up'. (AP)

The spokesman said it is “down to individuals to decide what personal information they are able to hand over”.

A Cabinet Office spokeswoman: “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.”

What was Boris Johnson previously fined for?

In April 2022, Johnson was issued a £50 fine for attending a birthday party thrown for him in No 10 during lockdown on 19 June 2020.

At the time he denied lying to parliament, insisting he was speaking in "completely food faith" when he told MPs it "did not occur to him at the time" that he was breaking the rules.

According to a report by senior civil servant Sue Gray, released in July last year, Johnson also gave a leaving toast for departing communications chief Lee Cain on 13 November 2020, days after ordering England’s second national lockdown.

Images published in her report showed Johnson raising a glass while surrounded by colleagues and bottles of wine.

Boris Johnson leaves No.10 Downing Street for PMQs amid the COVID-19 coronavirus pandemic and in a week that he faced a string of serious allegations from financial issues concerning flat refurbishment to reports that he resisted a second lockdown in October 2020 saying,
Boris Johnson insisted he didn't realise he was breaking the rules when he was fined for attending a birthday party in No 10. (Getty)

He also gave a speech at an alcohol-fuelled leaving do for two No 10 officials on 17 December 2020, with around 20 people in attendance, Gray said.

However, Johnson was only fined for the 19 June birthday party, prompting campaigners to launch a legal bid against the Metropolitan Police's investigation.

The Good Law Project's challenge was thrown out of the High Court in February, with judge Mr Justice Swift saying the group's case had “no prospect of success”.

“It is not for the court to second-guess the steps the police should take for the purposes of investigation,” he added.

Watch: Shadow immigration minister Stephen Kinnock says it shouldn't be up to the government to decide what evidence is relevant