When, as expected, the 4pm deadline passes on Thursday without the Cabinet Office handing over its cache of WhatsApp messages to the Covid inquiry, the Government will enter uncharted territory.
Baroness Hallett, the inquiry chairman, has threatened the Government with legal action unless the full unredacted material, from Boris Johnson, Rishi Sunak and a host of other senior figures, is handed over, while there have been suggestions that the Cabinet Office might seek judicial review of any action.
It is an extraordinary position for a government to be in – to face the prospect of being sued by the very inquiry it set up.
Who is going to win in this battle of wills? Whitehall insiders are putting their money on the inquiry team, headed by Lady Hallett, a former Appeal Court judge who has presided over a number of other official inquiries, including a scathing report into the emergency response to the 7/7 London bombings.
She has already made clear her disdain for the Cabinet Office’s approach – in a statement last week setting out why she was taking out a section 21 order legally requiring the data to be handed over, Lady Hallett said it was “not a promising start” that the Government’s legal department had initially deemed exchanges relating to the Covid regulations around the Sarah Everard protests as “unambiguously irrelevant” to her investigations.
Her lead KC, Hugo Keith, also has a formidable track record – he was the lead counsel on the 7/7 inquiry, and is expected to pull few punches when he grills Mr Johnson and other senior figures when the public hearings start in the middle of June.
The inquiry team’s leading solicitor, Martin Smith, has experience of taking on major institutions who stonewall in the face of searching questions.
As solicitor to Professor Alexis Jay’s Independent Inquiry into Child Sexual Abuse (IICSA), Mr Smith took on the Vatican and the then Prince of Wales, after both were initially reluctant to help with the investigation.
In 2018, Charles refused to give a formal witness statement to the IICSA about his friendship with the former bishop of Lewes and Gloucester Peter Ball, who was convicted in 2015 of misconduct in public office after admitting abusing young men between the 70s and 90s, and whose abuse had been reported to the Church of England as far back as 1992.
Instead, lawyers for the former Prince of Wales cited human rights law to object to giving a formal witness statement, and instead offered a letter written by him to the inquiry. Eventually, after a protracted battle over correspondence, the letter was accepted as evidence.
The inquiry also battled with the Vatican over its refusal to cooperate with investigations into abuse by paedophile priests.
In 2019 the inquiry leading counsel Brian Altman criticised the Vatican for withholding significant evidence and statements over several years.
The refusal of the Cabinet Office to back down to the Covid inquiry, after it was given a further 48 hours to comply on Tuesday, is being seen as an unprecedented situation by Whitehall insiders.
Much of the focus of this battle has been on WhatsApp messages sent by Mr Johnson, but in fact – as i reported this week – the former prime minister, as well as the ex-health secretary Matt Hancock, are willing to hand over their evidence to the inquiry directly, circumventing the Cabinet Office legal department entirely.
This may be because these two figures, who were at the heart of the Government’s pandemic response, have little to lose.
Mr Hancock’s WhatsApp messages have already been widely read and reported on, after they were leaked to The Daily Telegraph earlier this year.
The ex-health secretary is in favour of full transparency to the inquiry, in the interests of getting to the truth about Covid, according to his spokesperson.
It is also arguable that Mr Johnson has little to lose in handing over his messages, and the 24 A4 notebooks he kept as personal “jottings” during meetings for two years of the pandemic.
It is already well known that Mr Johnson failed to attend Cobra meetings early on in 2020, when the virus first emerged in China. His ex-adviser Dominic Cummings revealed excruciating details of Mr Johnson’s handling of the Covid response, when he gave evidence to the Health Select Committee two years ago.
The people with the most to lose, therefore, are the Prime Minister and other senior figures who were in the thick of the Government’s response in 2020 and are still in office.
Lady Hallett has demanded the unredacted WhatsApps of Mr Sunak, who was chancellor at the time, Simon Case, who is still Cabinet Secretary, and a list of ministers who are still in Cabinet, including Michael Gove, Steve Barclay, Kemi Badenoch and Penny Mordaunt.
The PM and these senior ministers and officials have so far avoided scrutiny of the inquiry’s great WhatsApp hunt, but they are unlikely to escape Lady Hallett and her team for much longer.