Covid judge gets to decide on Boris WhatsApps

Whenever something goes seriously wrong in democracies, governments appoint judicial inquiries to investigate and report. They are often an expedient smokescreen geared to fend off blame and diffuse criticism.

Politicians of all colours hide behind the familiar “let’s wait for the outcome of the inquiry” in the hope that by the time the inquiry investigates and publishes its report the fallout from what went wrong fizzles out.

Few lessons were learnt from the inquiry into the Iraq war not to embark on unlawful foreign wars in faraway places of which people know little and care even less is a case in point.

But some events that cause widespread loss of life are different in that human rights law requires an inquiry to take place because the procedural aspect of the right to life makes one essential.

More than 200,00 people died as a result of Covid-19 between 2020-23 in Britain – many unnecessarily – and a judicially led inquiry with detailed and democratically formulated terms of reference will shortly begin taking evidence about how the British government under Boris Johnson handled the Covid pandemic.

The judge appointed to head the inquiry is Baroness Heather Hallett, a former Court of Appeal judge. She is no nonsense and ruthlessly efficient and the early signs are that she will take no prisoners.

Her strong line with the government that she decides the relevance of documents the inquiry requires it to disclose is a foretaste of the shape of things to come in her conduct of the Covid inquiry.

The government refused to release unredacted WhatsApp messages of the former prime minister Boris Johnson to the inquiry that she deemed relevant to her inquiry. Johnson bypassed the government decision and disclosed the WhatsApp messages in his custody since June 2021 when he announced the inquiry. He is neither friend nor foe of the judge, but certainly no longer friendly with Rishi Sunak who replaced him as PM and may have gone rogue.

The government, however, claimed it is entitled to withhold messages whose disclosure would be in breach of the right to privacy of ministers and their officials or messages that are unambiguously irrelevant and sought a judicial review of the extent of the disclosure sought by the judge – the double negative is legalese for obviously irrelevant.

I do not buy the privacy argument on the grounds that the right to privacy is a qualified right. It requires striking a fair balance between the legitimate aim of the inquiry to uncover how the government handled the pandemic and the right to privacy of individuals in government and the balancing exercise must ultimately be for judge Hallett to perform.

Take the case of the kiss that forced the health minister, Matt Hancock, to resign. Suppose there are text messages from Johnson to Hancock before the story broke warning him that CCTV footage has come to his attention showing Hancock kissing his assistant in his office on multiple occasions in breach of the lockdown rules. I am not suggesting there are such messages, but it is a good semi hypothetical example that shows the limits of the privacy argument based on events that actually occurred.

Disclosure of such texts would be a breach of the privacy of both Hancock and his lover, but as it supposedly shows that instead of sacking him Johnson warned his health minister, it would be relevant to finding out whether Johnson tolerated breaches of the lockdown rules and therefore within the inquiry’s terms of reference.

The government’s claim that it is entitled to withhold WhatsApp messages on the grounds they are unambiguously irrelevant is more problematic and needs to be unpacked because judge Hallett only has power to require disclosure of relevant documents, which may be the reason why the government sought a judicial review of her disclosure requirements. Under the law that governs inquiries, however, the judge determines the procedure and conduct of an inquiry and the relevant documents she requires and, crucially, is the final arbiter of the relevance of the documents.

If the government claims that the documents sought are unambiguously irrelevant to the inquiry the position seems to be that even though judge Hallet could only require relevant documents to be disclosed, if government objects to their disclosure, it needs to produce the evidence to the judge for her to decide their relevance. In that way the integrity of the inquiry process is preserved in line with the guiding principles of openness, fairness and impartiality.

The government will probably argue that since the law is that she can only ask for relevant documents, it is entitled to withhold documents that are unambiguously irrelevant. It is a classic question-begging argument that assumes what it seeks to prove and the judge was right to reject it.

Usually the conflict between judges and the executive is kept from public scrutiny because judges respect the state’s need to invoke public interest immunity (PII) in respect of sensitive documents it would otherwise be obliged to disclose. In criminal cases prosecutors frequently apply to the trial judge to withhold disclosure of evidence on the ground that to disclose it to the defence and have it ventilated in public would prejudice national security or the prevention and detection of crime or some other public interest ground.

Sometimes, though not very often, trial judges refuse PII, and when that happens the prosecution has a choice to disclose and prejudice the public interest or abandon the prosecution.

Where the election involves, for example, disclosure of important informer sources or crime detection techniques or intelligence prejudicial to national security, the prosecution often chooses to abandon a prosecution rather than disclose the evidence. What then happens is that the prosecution offers no evidence and the defendant walks.

Judge Hallett was a very experienced criminal judge and her approach to disclosure in the Covid inquiry is unsurprising because the government’s claim to decide what is unambiguously irrelevant was contrary to her basic instincts that the relevance and admissibility of evidence are exclusively for the judge to decide.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge