Government War on Transparency Threatens COVID Inquiry: What We Learnt from this Week’s Hearing

The Government currently has hold of Boris Johnson’s old phone – which contains potentially thousands of messages between him and other key figures on the handling of Coronavirus in the crucial first year of the pandemic. 

It comes as the official probe into the Government’s handling of the pandemic finds itself embroiled in a bitter fight over access to crucial evidence, as the Cabinet Office withholds key documents relating to former Prime Minister Johnson’s tenure – while mounting a legal challenge against the inquiry’s demands for unredacted materials.

The Government says it needs to redact materials it deems “unambiguously irrelevant” to the inquiry. 

The ousted former PM was forced to abandon his old phone in May 2021 when it emerged that his number was available on the internet on the press release of a think tank from around 2006. Neither Johnson nor the COVID Inquiry have the expertise to safely download the phone’s contents, the inquiry heard. 

It has now been agreed that the Cabinet Office will take responsibility for handling the phone and accessing its material in a secure environment. But the arrangement has raised concerns about the integrity of the process – given the department’s current legal challenge against the inquiry over redactions. The High Court hearing over ministers’ refusal to provide full, unredacted materials is expected to take place at the end of the month. 

The battle over Johnson’s information involves conversations with currently serving ministers including PM Rishi Sunak, with opposition figures claiming there is a “cover-up” underway at the heart of government over potentially embarrassing messages. 

COVID bereaved families say the Government’s actions raise major serious concerns about transparency in the pursuit of accountability after the pandemic.

The Welsh and Scottish Governments indirectly criticised the Cabinet Office’s stance – pledging to respect a “duty of candour” and the importance of full transparency.

Palpable Anger

During the course of the day’s proceedings, the lead counsel for the inquiry, Hugo Keith KC, expressed his intense disappointment and frustration with the Cabinet Office’s apparent lack of cooperation. 

He demanded that the Cabinet Office clarify its position on unrestricted access to Johnson’s notebooks, diaries, and his old phone by the end of the week. 

“We are under very severe constraints of time,” he said. “And we are now of course actively engaged in litigation against the Cabinet Office in the High Court.  They have had ample time to make their position clear.”

The condemnation directed at the Cabinet Office was dryly acknowledged by chair Baroness Hallett, who welcomed its lawyer with “not the most popular brief today”. 

Asked for clarity on whether Johnson’s old phone messages would be redacted by the Cabinet Office, the department’s lawyer said: “The position is that the Cabinet Office is working out its position”. 

“Right,” replied chair Baroness Hallett. 

The Government’s lawyer would also not confirm whether officials would attempt to redact the former PM’s diaries – which would be farcical as Johnson has offered to give them to the inquiry in unredacted form. 

Hugo Keith KC said: “I would invite [the chair] to order that by the end of this week, given the amount of correspondence which has gone to and fro, for the Cabinet Office to formally indicate what its position is in relation to unrestricted that is to say unredacted access to the notebooks [and old phone] belonging to Mr. Johnson.”

Baroness Hallett went on to issue the demand for clarity from the Government, saying: “Very well. I make the directions that you seek and I expect those matters to be resolved by the end of the week.”

Speaker after speaker representing bereaved families berated the Government for obstructing the inquiry and its chair, Baroness Hallett. 

The inquiry also heard that Rule 9 requests for documents have been issued to a host of senior former and current ministers, including Prime Minister Rishi Sunak, former Deputy PM Dominic Raab, and former Health and Social Care Secretary Matt Hancock, as well as Liz Truss and others.

Damaging Delays

The timing of their challenge, just before the inquiry’s official start, threatens to delay the process, causing frustration among the COVID bereaved families. Calls have been made for a statutory “duty of candour” to ensure the Government’s full cooperation.

Delays and inadequate responses have plagued the delivery of requested government statements, raising questions about the accountability of those responsible, the inquiry heard. One lawyer described it as “shocking and appalling”. 

A representative of disabled people’s organisations highlighted that the Government’s tactics, even though formally attributed to the Cabinet Office, are ultimately sanctioned by the Government, the Prime Minister and his ministers. 

In addition to these challenges, the Department for Health and Social Care and UK Health Security Agency have missed deadlines for providing documents. The government bodies have been given a brief deadline extension for disclosure of materials. 

In relation to the ongoing legal battle, the inquiry’s counsel clarified that documents obtained through Rule 9 requests, including unredacted WhatsApp messages from ministers, will not be given to the hundreds of core participants – perhaps allaying some of the department’s fears about leaks. 

Not Just WhatsApp

One new contentious fault-line revolves around the Cabinet Office’s screening of documents for “relevancy” in Google Spaces, a platform used by civil servants. 

Hugo Keith KC warned that the Government’s legal arguments demanding a right to screen messages it hands over will extend beyond WhatsApp messages, potentially impacting a wide range of documents, including emails and text messages. 

The lawyer representing ethnic minority health and social care workers referred to the case of Associated Newspapers v Leveson (2012), saying it proved the authority of the chair to shape the course of the inquiry with access to full, unredacted documents on demand to ensure robust and fair investigations.

The inquiry was also asked to confirm whether it has requested the widest-ranging communications from the Cabinet Office, including platforms like Signal and Telegram, which are used by some politicians, deemed more “private” than WhatsApp. (All three apps however are encrypted, meaning end-to-end communication is unable to be intercepted).

More Rows – and Wins

It also emerged that PR agency 23Red, which was previously involved in pandemic-related work for the Government, is no longer working with the inquiry following a backlash over a potential conflict of interest. 23Red has been contacted for comment. To address concerns from bereaved family groups over the state of public engagement and PR work from the inquiry, an ethical advisory panel has been established. 

The inquiry also issued a new commitment to address “pre-existing structural racism” and inequality, with plans to call experts in racism – including renowned academic Sir Michael Marmot – to provide testimony.

The probe’s leading lawyer also confirmed the inquiry would look at Long COVID – a long-standing call of patients’ groups. 

Children’s rights groups expressed disappointment that former Education Secretary Gavin Williamson has not received a so-called Rule 9 legal demand for documents and messages related to his role in the pandemic response. They called for the decision to be reconsidered. 

And the Trades Union Congress (TUC) compared the actions of the Cabinet Office on vetting documents to “turkeys deciding on whether to vote for Christmas”. 

The TUC has been forced to self-fund its legal representation in the inquiry – despite figures such as millionaire Boris Johnson getting around a million pounds in taxpayer funding for his legal representation. 

Concerns were raised about a potential pattern of unreported deaths under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (RIDDOR). Counsel for ethnic minority health workers appeared to highlight research published by Byline Times.