Two-fingered salute: Boris Johnson’s WhatsApps, diaries and notebooks have put the Cabinet Office between a rock and a hard place – and he may be delighted, after the Cabinet Office referred him to two police forces for possible social distancing breaches during Covid lockdowns on the basis of information in his diaries.

There’s an important piece of information missing from yesterday’s (June 1, 2023) stories about the Cabinet Office taking the Covid Inquiry to court.

It is this:

Unless the Cabinet Office supplied a signed ‘Statement of Truth’ that it had seen Boris Johnson’s notebooks and diaries for the relevant period of time, the judicial review it has requested is likely to find against it.

Allow me to explain (with help from the source listed below):

You will recall that the Covid inquiry had demanded access to Boris Johnson’s unredacted WhatsApp messages, diaries and notebooks covering the period from January 1, 2020 to February 24, 2022. This requirement was communicated to the Cabinet Office on April 28 this year.

The Cabinet Office responded with an application to object to this demand, dated May 15, on grounds that it was outside the legal powers of the Inquiry to request what the Cabinet Office dubbed “unambiguously irrelevant” material and that it was for the Cabinet Office to determine what was “unambiguously irrelevant”; and that the Cabinet Office did not understand the request for the diaries and notebooks, which was new.

The Cabinet Office stated that its point about irrelevance applied “with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”

(Notice that this applies to the notebooks and not the diaries – and implies that the Cabinet Office had, or had access to, the notebooks in order to know what was in them.)

On May 22, the inquiry’s chair, Baroness Hallett explained that extracts from the diaries had been received in redacted form in draft witness statements that had been “exhibited” to the inquiry. It seems she was going to formally request the diaries and notebooks after receiving these extracts from the former and information about the contents of the latter and had merely used its April 28 notice to do so.

Then, after the close of business on Friday, May 26 (and remember, the deadline for handing over the information was the following Tuesday, with a Bank Holiday weekend in between), the inquiry received a letter from the Cabinet Office saying it did not have either Johnson’s WhatsApp messages or his notebooks. It seems the claim is that it had not had them since the April 28 demand was made.

So how could the Cabinet Office say these items contained material that was “unambiguously irrelevant”?

On Tuesday (May 30), Baroness Hallett granted an extension of the deadline – of just two days, until yesterday (Thursday, June 1).

But she added a new requirement:

She says she will accept that the Cabinet Office does not have under its custody or control the requested materials only [if] there is a full detailed explanation for why this is so – and that this explanation will need to be attested to by officials with a signed statement of truth.

That is, under pain of perjury.

The full list of conditions shows that Baroness Hallett, and therefore the inquiry, wants to know whether the Cabinet Office has had the WhatsApps, diaries and notebooks at all since February 3 this year – the date the inquiry sent its initial request for information to the Cabinet Office.

This will establish whether the Cabinet Office had any grounds for its claim that these materials contained information that is “unambiguously irrelevant”.

This Writer thinks the trap here is in the notebooks. The Cabinet Office has not been clear about what is in them but has been required to issue a Statement of Truth that they contain “unambiguously irrelevant” information.

That will be hard to do, if nobody at the Cabinet Office has seen them.

As my source below – a former central government lawyer – states,

The requirement for a signed statement of truth is significant – and you may recall that the Miller II case on the prorogation of parliament was lost by the government because nobody was willing to provide a statement of truth as to the actual reasons for the prorogation.

And this Statement of Truth was required by 4pm yesterday.

And we haven’t been told whether it was provided.

But I shall ask.

ADDITIONAL: Boris Johnson’s announcement on Wednesday that he had provided unredacted WhatsApps, diaries and notebooks to the Cabinet Office and is happy to send them to the Covid inquiry makes matters even worse for the government.

In a judicial review, the Cabinet Office will no longer be able to say it does not have the disputed material – but will still be required to prove that it had not been in possession of it between February 3 and May 31. Any claim that it contains “unambiguously irrelevant” material may be dismissed as irrelevant to the main issue, which is whether the Cabinet Office knew that at the time it was claiming it to the Covid inquiry.

Source: How the Covid Inquiry may have set an elegant spring-trap for the Cabinet Office – The Law and Policy Blog