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Government Forced to Reveal Cost of Failed Legal Challenge Over Release of Covid-Era WhatsApp Messages from Johnson and Sunak

A Freedom of Information battle means Byline Times can now reveal the cost to the public for the Government’s doomed legal challenge to the Covid inquiry

Rishi Sunak and Boris Johnson. Photo: NurPhoto SRL / Alamy

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The Government wasted nearly £200,000 of taxpayers’ money on lawyers to fight its unsuccessful legal battle against a demand for unredacted WhatsApp messages from ministers during the pandemic, Byline Times can reveal.  

Ministers initially resisted demands from the official Covid inquiry chair Baroness Hallett to hand over an unredacted cache of documents from during the pandemic, including ex-PM Boris Johnson’s WhatsApp messages, notebooks and diaries – going so far as to trigger a court battle.

Ministers lost their case this July, having claimed that it should only hand over documents it deemed relevant. The court however ruled that the chair of the inquiry had the ability to demand all materials she deemed relevant and necessary, not Government departments.

Following an FoI battle with Ian Rex-Hawkes, the Liberal Democrat spokesperson for Ruislip, Northwood and Pinner, the Cabinet Office has now released the headline cost of the legal battle.

A spokesperson told Rex-Hawkes: “We are content to disclose that as of November 2023 the total legal costs for the Judicial Review on the production of Government and Ministerial WhatsApp messages to the Inquiry were £192,739.” 

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The Lib Dem activist told Byline Times: “I am so fed up with the continuous wastage by this Government, especially when you consider the quarter of a million pounds spent on Boris Johnson’s partygate legal fees. It seems obvious that these messages should have been handed to the inquiry from the start. 

“But they tried to avoid even releasing the amount spent at first, saying it was commercially sensitive and not in the public interest. Now they’ve finally given up and given us at least one figure. 

“Just to get advice on whether they have to hand over messages to a public inquiry they have wasted nearly £200,000. If they’d asked any lawyer, that would be six minutes of work: it would cost a few hundred quid to say: “yes you should hand the WhatsApps over”…The £200,000 doesn’t represent value for money.”

The cost covers legal advice on whether the Government needed to disclose messages to the public inquiry, as well as the judicial review to take the inquiry to court over its demand for the unredacted messages – a battle the Government lost. 

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Both PM Rishi Sunak and ex-PM Boris Johnson have, despite the court order, failed to release their WhatsApp messages from key stages of the pandemic, with both saying they were lost. The claims have triggered anger from victims’ families and allegations of obstruction to the inquiry.

Rex-Hawkes added: “I don’t believe their story for a moment. WhatsApp is designed to transfer messages from phone to phone. You have to take significant steps to not have that data carried through to a new device. If they took those steps, that says a lot about whether they know they did something wrong. It looks obstructive.”

Jolyon Maugham, director of Good Law Project, told Byline Times: “When it comes to paying junior doctors properly, the Government never tires of pointing out constrained public finances. But when it comes to cover-ups of what they did during the pandemic, it often feels like money is no object.

“I think what the British public really wants is for them to just come clean – stop ‘losing’ their WhatApps; stop trying to block the Inquiry’s access to the ones they didn’t lose.”


Resisting Demands

The Cabinet Office initially rejected the request to know how much was spent fighting the Covid inquiry’s request for unredacted communications from ministers, saying it could “prejudice the commercial interests” of the legal firms by revealing their fees. 

“It is our view that disclosure of information relating to the breakdown of fees would be likely to adversely affect the law firm and counsels’ chambers, and how they competitively charge their clients in comparison to others specialising in the same areas of law,” the Cabinet Office said in its first response. 

“It would be likely to harm instructed law firms, counsel and their chambers’ business reputations,” the department claimed. Officials also claimed that releasing a cost breakdown would “deter future solicitors and counsel” from working with departments. 

“We recognise that there is a public interest in openness and transparency of Cabinet Office’s legal expenditure, enabling accountability in the efficient use of public resources. However, these points are weighed against the commercial confidence expected from the department when instructing independent counsel,” the department initially stated, adding: “We have determined that the balance of the public interest favours withholding this information.”

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But Rex-Hawkes challenged the claims, ordering an internal review to the department’s rejection of his Freedom of Information request. He argued: “If a firm is charging a public department for its services, then that firm can have no reasonable expectation that its fees will remain private.”

After the internal review, the Cabinet Office released the total spend. However, a breakdown of what the money was spent on was deemed “exempt from disclosure” on the grounds that its disclosure would be “likely to prejudice the commercial interests of any person.” 

“The disclosure of the breakdown of costs would expose the rates that the Cabinet Office was prepared to pay for legal advice on a matter such as the judicial review. This would undermine the market position of the Cabinet Office and potentially lead to it being

charged more for legal advice than would otherwise be the case,” the department claimed. 

And they added that a detailed breakdown of costs would “undermine [lawyers’] position in the legal advice marketplace and give their competitors an unfair advantage.”

Tom Brufatto, Director of Policy at campaign group Best for Britain said they would add the costly legal fight to its ‘scandalous spending tracker’. The total the group claims has been wasted by the Government since 2019 is now nearing £100bn. 

Susie Flintham, spokesperson for Covid-19 Bereaved Families for Justice UK said: “It’s obscene that the Cabinet Office blew £200,000 on a judicial review that had a minuscule chance of succeeding, in the desperate hope of obstructing their own inquiry from receiving key evidence. You shudder to think what is in the many thousands of WhatsApp messages that Johnson and Sunak have flat out refused to share with the inquiry.

“As ever, they’re more interested in protecting their reputations than they are in trying to save lives in the future. Their attitude is completely self serving and their selfish actions risk leaving us unprepared for the next pandemic, just as we were for the last one.”

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Josiah Mortimer also writes the On the Ground column, exclusive to the print edition of Byline Times.

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