Why is the British government fighting its own COVID inquiry?

THE HIGH COURT, London — Britain’s inquiry into the coronavirus pandemic has barely begun, but it’s already locked in a legal fight with the government.

Friday marked the first day in what one lawyer present described as an “ultra-technical” battle between the Cabinet Office, a key government department, and the inquiry which ministers themselves ordered.

In a sweltering Royal Courts of Justice, members of the public — including families of those who lost loved ones in the pandemic — heard the two sides trade blows over what exactly the inquiry gets to see.

Set up by Boris Johnson in May 2021 to start the following spring, the government and its inquiry started butting heads in April of this year when Baroness Hallett — the inquiry’s chair and a former High Court judge — announced the Cabinet Office must hand over all un-redacted WhatsApp messages sent and received by Johnson between 1 January 2020 and 24 February 2022. That’s seen as the crucial stage of the pandemic, where key decisions were discussed on a host of less formal channels.

The Cabinet Office — which has long held a reputation for secrecy — resisted. It then blew past an extended deadline for giving evidence, and vowed to settle the matter in court. It’s launched a judicial review into the COVID-19 inquiry’s demands — insisting Hallett’s push for “unambiguously irrelevant material goes beyond the powers of the Inquiry.”

Although Boris Johnson’s texts have been at the center of the fight, there’s more at stake.

Johnson himself (who is immersed in his own endless rows with Rishi Sunak’s government) has agreed to hand over some of his communications, saying: “While I understand the government’s position, I am not willing to let my material become a test case for others when I am perfectly content for the inquiry to see it.”

Speaking at the High Court Friday, his lawyer David Pannick said Johnson “supports the position of the inquiry.”

So, while the former prime minister always seems to be a main character in British political drama, the real crux of the fight is this: what exactly does the COVID-19 inquiry have the power to request? And if it gets hold of Johnson’s texts, could that open the floodgates to more revelations from inside government?

In court Friday, the government’s lawyer James Eadie spent much of the morning arguing the inquiry is overreaching. “It is a minister who establishes the inquiry and the terms,” they argued. “It is not the chair who establishes the terms.”

The inquiry, unsurprisingly, disagrees. It’s lawyer Hugo Keith argued Friday that it is “permissible within the bounds of rationality” for the inquiry to seek the material it’s after, and that it’s Hallett’s responsibility to define what is and is not permissible.

Writing in skeleton arguments for the case, the inquiry team said that position “ensures that the Inquiry can conduct an effective and thorough investigation in which the public can have confidence.”

The case is expected to rumble on until Monday, after which point presiding judges James Dingemans and Neil Garnham will make their decisions.

Sir Jonathan Jones KC — formerly one of the government’s top legal figures — reckons this “unusual” battle is likely to be won by the inquiry. “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,” Jones wrote for the Institute for Government.

If so, there could be a few senior figures in Whitehall nervously considering the contents of their WhatsApp history.