Transparency activists have accused ministers in the UK’s third highest court of running “government by WhatsApp“, arguing that using self-destructive messages on unsafe platforms is illegal and undemocratic.
Ministers and government officials could be blocked from sending “disappearing messages” after failing to keep public records of exchanges on private phones, email and WhatsApp. Some of these communications addressed matters of significant public importance related to the pandemic response and government procurement.
Two separate cases will be heard over three days starting Tuesday, with a decision at a later date.
The first case is brought by transparency activists All the Citizens (ATC) and non-profit organization Foxglove over the use of disappearing messages and automatic deletion features. The second case brought by the Good Law Project focuses on personal devices.
On Tuesday, the Supreme Court heard that Prime Minister Boris Johnson used personal WhatsApp accounts to communicate “critical decisions”.
Ben Jaffey QC, representing ATC, said the messages could serve as a “public record for future societies” and that the deletion fell short of “meaningful and parliamentary democracy” and allowed “scrutiny by inquiry or judicial process”.
The activists are also seeking an end to a Cabinet Office policy to delete messages sent on personal devices, in some cases using features that automatically delete messages after seven days, which they say violates the Public Records Act .
Government lawyers claim that it is not illegal for ministers to choose how they communicate and that the use of personal devices is common in modern workplaces.
Managing Director of ATC, Clara Maguire, said the case was sparked by a cabinet refusal to answer questions about WhatsApp’s use for government business, which is against government policy.
She said: “It’s extraordinary that we had to go to court to get answers. Our evidence shows that vanishing messages have been used over and over again. That period, Boris Johnson’s government, will be a black hole for future historians.”
Evidence presented to the judge includes multiple testimonies naming key government figures for their use of personal devices and automatic deletion.
These include Johnson’s former chief adviser Dominic Cummings, half of the permanent secretaries in the Cabinet Office, all special advisers and most of the Cabinet Office ministers, including former Health Secretary Matt Hancock and Education Secretary Nadhim Zahawi.
Evidence also shows that the Prime Minister requested summaries of his “red box” submissions via WhatsApp to his private phone, despite Guideline No. 10 prohibiting the use of the platform for “non-trivial communications”.
In their written submissions, plaintiffs’ attorneys argued that the “admitted instances of using automatic deletion are likely the tip of a much larger iceberg.”
The government’s legal team has suggested that information in personal accounts is “not in principle inaccessible” and can be accessed on request, that while its use is discouraged, it is not prohibited, and claims that “it is possible to have an automatic perform deletion lawfully and fairly”.
In a written submission, they argued that “there is no common law principle” preventing ministers or officials from communicating in a manner “which they consider appropriate”.
They continued, “The allegations made are detached from the reality of current labor practices. The modern working age is defined by instantaneous and fast communication.”
The cases continue.