The UK Covid-19 inquiry wants to see WhatApp messages and notebooks kept by Boris Johnson to see how the government made decisions during the pandemic.

The Cabinet Office announced on 1 June that it would be seeking a judicial review of the inquiry’s order to hand them over.

But why is the government continuing with legal action and could this case set a precedent for the future?

FactCheck takes a look.

What has the Covid inquiry asked Boris Johnson for?

The inquiry wants WhatsApp messages and notebooks from Mr Johnson during the pandemic.

Inquiry chair Baroness Hallett ordered the government to hand over the documents last week without any amendments.

She did this using a section 21 order of the Inquiries Act 2005, which provides inquiries with statutory powers to compel evidence.

But the Cabinet Office announced on 1 June that it is seeking a judicial review – effectively, a legal challenge – of Baroness Hallett’s order.

The government department said it was bringing the case “with regret” but added that there were “important issues of principle at stake”.

However, former prime minister Boris Johnson announced a day later that he was giving all the WhatsApp messages and diaries available to him directly to the Covid inquiry, bypassing the Cabinet Office altogether.

In a letter to Dame Hallett, Mr Johnson said: “While I understand the government’s position, I am not willing to let my material become a test case for others when I am perfectly content for the inquiry to see it.”

He said he would hand over “all unredacted WhatsApps I provided to the Cabinet Office”, which he has now done, but these are only from May 2021 onwards as he was using a new phone from this date after his old phone was involved in a security breach and has not been turned on since.

Mr Johnson said he wants to hand over “any material that may be on an old phone which I have previously been told I can no longer access safely”, and has asked the Cabinet Office for assistance in turning his old phone on securely.

He said he doesn’t have access to his notebooks as he handed these to the Cabinet Office, but that he’s asked for these to be passed on and if they aren’t then he will ask for them to be returned to his office so he can provide them to the inquiry directly.

Why is the government proceeding with legal action when Boris Johnson has already handed over his whatsapp messages?

Emma Norris, deputy director of the Institute for Government (IFG), told FactCheck the government is continuing with its legal action because it is “concerned that handing over the material will set a precedent for other senior politicians, including the current prime minister and officials, who could also be asked to disclose similar material to the inquiry”.

She added: “I expect they are also concerned about the precedent beyond this inquiry and more to how WhatsApp is treated in general and whether that kind of communication should be available to scrutiny.”

As far as public inquiries go, “there is currently no precedent for the government to seek judicial review of an inquiry’s powers to access evidence in this way,” Ms Norris added.

Nick Allen, professor of politics at Royal Holloway, also told FactCheck that “civil servants may well be pushing for this more than ministers”, partly because “there is a need to establish the law in this area”.

Could the government win this challenge?

Ms Norris told FactCheck that the government “could win or lose” and “it is very hard to make predictions about the outcome of the judicial review”, particularly because “there is no precedent for this so there is no previous court decision to consider”.

But she added that so far, “most legal commentators appear to think it is more likely that Baroness Hallett will win”.

The wide terms of reference of the inquiry, the Inquiries Act and the importance of independence “all make it unlikely” that a court would decide that it is for the government to decide what is relevant, rather than the inquiry chair, said Ms Norris.