Exclusive: Government demands Covid inquiry gives back evidence

The government has demanded the Covid inquiry hands back some of the evidence it submitted, openDemocracy has learnt.

A note from the inquiry confirms it has received all the materials required by the Section 21 notice it issued to the Cabinet Office in April, meaning it is finally in possession of Boris Johnson’s unredacted WhatsApp messages from before May 2021. But the note also states the government department has “made a further s21(4) application, which is being considered”.

Under the Inquiries Act, a Section 21(4) notice covers “two reasons for which a person might refuse to comply” with handing over evidence: if they do not possess it, or if they believe it is unreasonable to hand evidence over. The same legal process was used by the government when it tried and failed to block the inquiry getting hold of Johnson’s WhatsApp messages and diaries.

However, it is understood that a fresh request has now been made under the same law to ask the inquiry to hand back evidence it deems to be irrelevant.

A Section 21(4) is not often used for this purpose, as irrelevant material is not intended to be disclosed by an inquiry anyway. The Cabinet Office was criticised for its misuse of this request the first time it tried to use it.

When asked by openDemocracy, the inquiry would not confirm the scope of the Section 21(4) notice but said that a decision from its chair, Heather Hallett, would be issued “in due course”.

The inquiry has only recently been handed Johnson’s WhatsApp messages from between 1 January 2020 and 24 February 2022, as well as unredacted diaries and unredacted messages on phones owned or used by former Johnson aide Henry Cook. The documents have not yet been disclosed to core participants in the inquiry, who have received more than 8,500 pages of Matt Hancock’s WhatsApp messages ahead of evidence-giving in October.

What evidence the government must hand to the inquiry for the next module – which will interrogate decision-making during the pandemic – was the focal point of a battle between its chair and the Cabinet Office before the inquiry even began.

In July, the Cabinet Office lost a judicial review in which it sought to withhold some of Johnson’s messages from the inquiry. That ruling meant the Cabinet Office was required to hand over the evidence in its entirety, and that it was for the inquiry to decide what was and wasn’t relevant.

A “security breach” in May 2021 was blamed for delays retrieving the messages. It was discovered that the then-PM’s phone number had been freely available online for 15 years, resulting in the disabling of his phone. Johnson had apparently been told not to turn the phone back on by security experts, and it was then reported he had forgotten the passcode. But experts were finally able to access the phone last month.