The UK government does have a legal case for withholding WhatsApp messages from the COVID inquiry -- but here's why it will probably lose in court anyway

The UK government has decided to challenge, via a judicial review, a ruling on document disclosure by Baroness Hallett, the chair of the public inquiry which is into the way the COVID-19 pandemic was handled.

Hallett wants the “entire contents” of specified document classes, including WhatsApp messages, diaries and notebooks of Boris Johnson, the then prime minister, and an adviser named Henry Cook, to be disclosed to the inquiry. The government is resisting this request.

Its resistance is widely seen, even by a government minister, as unlikely to convince at judicial review but this case is both more complex and more important than it seems. Resolving the question of whether these documents must be handed over to the inquiry could set an important precedent. That said, the government is still likely to lose the case, although litigation is always hard to predict.

Hallett’s reasoning is that such documents may be “potentially relevant”, even if at first sight they appear to be irrelevant. A WhatsApp message might, for example, reveal that a government minister was focusing on something other than COVID at a time when that should have been their sole concern. This is a pertinent issue since one criticism of the Johnson administration was that it was slow to take the threat of the pandemic seriously.

The problem is that the law states that an inquiry can only call for documents that “relate to a matter in question at the inquiry”. But the reason why Hallett is insisting that she has the right to see everything is because the chair decides what is relevant.

Matters were not helped by the government recently deciding to release some documents to the inquiry to show that it was only redacting “unambiguously irrelevant” material. In her ruling, Baroness Hallett pointed out that some of it was, in her opinion, indeed relevant because it concerned “the enforcement of COVID regulations by the Metropolitan Police”. She described this as “not a promising start”. She also said that “the relevance of at least some of these passages may not have been apparent to the Cabinet Office and its advisers” to bolster her claim that it is for her to decide what she needs to see.

What is the government arguing?

The government’s response makes the reasonable point that, by definition, if all the WhatsApp documents must be released then that must, inevitably, include many irrelevant documents. Genuinely irrelevant documents cannot, by definition, “relate to a matter in question at the inquiry” and so would not fall within the statutory powers of the chair.

Even if some of the documents thought to be “unambiguously irrelevant” may turn out to be relevant later as new issues emerge, that still means that the chair is insisting on the release of many documents that even the chair must admit are not relevant.

Further complexity is being added to the mix because of the issue as to whether the Prime Minister and others were wrongly focused on other policy issues in early 2020 at the expense of the looming pandemic. The government confronts that issue head-on. It claims that the inquiry could simply make targeted requests for documents such as WhatsApp messages sent within particular dates rather than making a blanket document request.

The key question: ‘irrationality’

Why then are the government’s chances still so slim, despite these manifestly reasonable arguments? There is a simple answer. The bar the government must clear to have the chair’s decision quashed is extremely high. It must show that Baroness Hallett acted “irrationally”. This is not an appeal.

Baroness Hallett is leading the public inquiry on the UK’s Covid response. Wikipedia/UK Parliament, CC BY

Normally, the bar is set so high because judges are very reluctant to interfere in the discretionary decisions of public bodies, including primary decision-makers such as Hallett. This is a separation of powers issue, as a matter of constitutional law.

The test for “irrationality” itself is expressed in different ways. One version is that the decision can only be quashed if it is “so unreasonable that no reasonable authority could ever have come to it”. A slightly milder version of the test states that the decision must be “within the range of reasonable responses open to the decision-maker”. If human rights are at stake, then the courts will apply additional “anxious scrutiny”. The government is claiming some privacy rights of advisers and officials are in play in this case, which could therefore bring the anxious scrutiny test into the picture.

Even so, the government has its work cut out to demonstrate that Baroness Hallett acted irrationally, particularly as she has provided some superficially plausible reasons for her request. Irrationality and unreasonableness, in the end, turn on reasons so the question is whether the court thinks that she has satisfied the test or not. Nonetheless, her insistence on seeing documents that are clearly irrelevant means the courts will face a difficult dilemma.

If the decision is quashed, Baroness Hallett might regard such a defeat as a significant blow to her authority. The government is clearly concerned about the potential precedent set by the chair’s demands. The stage is thus set for a far more nuanced and difficult hearing than is being acknowledged by many commentators.