Proponents of transparency have accused ministers of pursuing “government of WhatsApp” in Britain’s third-highest court, arguing that the use of self-destructive messages on insecure platforms is illegal and undemocratic.
Ministers and government officials could be stopped from sending “disappearing messages” after failing to keep public records of exchanges on personal phones, email and WhatsApp.
Some of these communications addressed issues of significant public importance in the context of the pandemic and the award of public contracts.
From Tuesday, two separate cases will be processed over three days with a decision at a later date.
The first case is brought by transparency advocates All the Citizens (ATC) and non-profit Foxglove over the use of disappearing messages and auto-delete features. The second case, brought by the Good Law Project, focuses on private entities.
On Tuesday, the district court heard that Prime Minister Boris Johnson has used personal WhatsApp accounts to communicate “critical decisions”.
Ben Jaffey QC, representing the ATC, said the messages could serve as a “public record for future societies” and that deletion does not comply with “meaningful and parliamentary democracy”, allowing for “control through investigations or trials”.
Proponents of her case have been working to make the actual transcript of this statement available online.
The government’s legal team argues that it is not illegal for ministers to choose how they communicate, and the use of private devices is common in modern workplaces.
ATC CEO Clara Maguire, said the case was prompted by a refusal by the Cabinet Office to answer questions about the use of WhatsApp for public companies, which is contrary to government policy.
She said: “It is extraordinary that we have had to go to court to try to get answers. Our evidence shows that disappearing messages have been used over and over again. This period, Boris Johnson’s government, will be a black one. hole for future historians. “
Evidence submitted to the judge includes several testimonies in which key government officials are named 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 the special advisers and most ministers in the cabinet, 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 from WhatsApp to his personal phone, even though the No 10 policy bans the use of the platform for “non-trivial communication”.
In their written arguments, the plaintiffs’ lawyers argued that the “admitted cases of use of automatic erasure are likely to be the tip of a much larger iceberg”.
The government’s legal team has suggested that information on private accounts is “in principle not accessible” and can be retrieved on request, that even if its use is discouraged, it is not prohibited, claiming that “it is possible to conduct automatic deletion legal and fair ”.
In a written submission, they argued that “there is no principle” in ordinary law that prevents ministers or officials from communicating in a way “they deem appropriate”.
They continued: “The claims made are separate from the reality of current work practices. Modern working time is defined by instantaneous and rapid communication.”
The cases continue.