What happens if the government doesn’t hand over Boris Johnson’s WhatsApps?

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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 aisde, 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?

Lady Hallett, insisting all the communications were of “potential relevance” to the inquiry, has threatened legal action against the government – warning of criminal sanctions.

The inquiry’s chairwoman said her request was made under section 21 of the Inquiries Act 2005 – pointing out that failure to comply could be a criminal offence and punishable with a fine of up to £1,000 or even imprisonment for a maximum of 51 weeks.

But the Cabinet Office’s lawyers are thought to have advised officials that the inquiry does not have the power to demand all material – with the Sunak government reportedly considering launching its own judicial review.

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So while the government is expected to at least reply to Lady Hallett by 4pm, it seems the dispute is destined to end up in court.

What happens if a judge rules in favour of the UK Covid-19 Inquiry? It not clear who might be liable for criminal proceedings if the government continue to refused to comply with a court order.

However, it appears unthinkable that the Sunak government would refuse to hand over material if it was lose a court case, with a Cabinet Office spokesperson insisting the department will hand over information “in line with the law”.

It comes just weeks before the first public inquiry evidence sessions are expected to be held. It isn’t clear whether it could delay proceedings – or whether the chairwoman could get hearings under way while still battling the government in court.

It is also unclear whether the Cabinet Office will now ask Mr Johnson to hand over his WhatsApp messages and notebooks. Lady Hallett rejected the request for an extension of time to 5 June 2023, but granted a short extension to 4pm on Thursday.

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Mr Johnson has insisted he does not object to disclosing his evidence to the Covid inquiry. “The decision to challenge the inquiry’s position on redactions is for the Cabinet Office,” said his spokesman.

What’s the worst-case scenario for Mr Johnson? The PM is already under serious pressure over his actions during the Covid crisis – battling to save his political career on several fronts.

The inquiry wants to see his conversations with host of top figures. The list includes England’s chief medical officer Professor Sir Chris Whitty, then-chief scientific adviser Sir Patrick Vallance, then-health secretary Matt, ex-strategist Dominic Cummings and then-chancellor Mr Sunak.

Lady Hallett has also asked for “copies of the 24 notebooks containing contemporaneous notes made by the former prime minister” in “clean unredacted form”.

Mr Johnson will be worried the material could prove highly embarrassing. The ex-Tory leader could scrape through the verdict of MPs investigating whether he lied to parliament over Partygate – expected within weeks – only to find himself on the defensive once again.

While two police forces are still examining material on potentially rule-breaking events at Chequers and No 10, there is the possibility that the former PM could face a lengthy new police probe while having to face awkward public inquiry questions over his messages at the peak of the pandemic.

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Mr Sunak was intially understood to be willing to hold a clear-the-air meeting with Mr Johnson later this week, with the former PM understood to be “furious” at the Cabinet Office for referring summaries of his diary entries on to the police. But a meeting is not scheduled to go ahead as it stands.

As reported by the Sunday Times, junior minister Jeremy Quin, the Paymaster General, is understood to have approved the handing over of the same documents to the privileges committee investigating whether Mr Johnson lied to parliament.

So will the government win its argument with the inquiry over the need for confidentiality? Former head of the civil service Lord Kerslake backed Lady Hallett and said there was a “cover-up” going on here “to save embarrassment of ministers”.

On the Cabinet Office fighting for a principle of confidentiality, he told BBC Radio 4’s Today programme: “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.”

Liberal Democrat health spokesperson Daisy Cooper said that “it looks like Rishi Sunak is too worried about upsetting Boris Johnson and his allies to do the right thing”.

Mr Sunak claimed government was acting “in a spirit of transparency and candour”. He told reporters on Tuesday: “With regard to the specific question at the moment, the government is carefully considering its position but it is confident in the approach that it’s taking.”

A Cabinet Office spokesman said: “We are fully committed to our obligations to the Covid-19 inquiry ... We will continue to provide all relevant material to the inquiry, in line with the law, ahead of proceedings getting under way.”