“Government by WhatsApp” set for legal challenge

Ministers and civil servants are required by policy to set instant messaging chats to delete automatically, it has been revealed, as a judicial review over the government’s use of self-destructing messages was given the go-ahead.

Cabinet policy obliges ministers to delete instant messages

Haroon Siddique www.theguardian.com 

The not-profit organisation the Citizens says the use of disappearing messages, which has been described as “government by WhatsApp”, violates British law on public records and freedom of information.

Its legal challenge comes amid concerns that the likes of WhatsApp and Signal, which have a disappearing messages option, are being used to avoid scrutiny of decision-making processes, including on significant issues such as the government’s coronavirus response.

At a high court hearing in London on Tuesday, it was revealed that the Cabinet Office’s “information and records retention and destruction policy”, disclosed in response to the Citizens application for a judicial review, obliges officials to delete instant chats.

The policy says: “Instant messaging is provided to all staff and should be used in preference to email for routine communications where there is no need to retain a record of the communication. Instant messages history in individual and group chats must be switched off and should not be retained once a session is finished. If the content of an instant message is required for the record or as an audit trail, a note for the record should be created and the message content saved in that.”

The Citizens says making a separate note, as opposed to preserving the actual message, is insufficient to comply with the law. Other documents disclosed ban the use of personal phones, email and WhatsApp by ministers and civil servants. The Citizens, which is being supported by the campaigning law group Foxglove, says the policies are “a confusing, contradictory mess”.

It is challenging the lawfulness of:

  • Use for government business of instant messaging services that allow messages to be automatically deleted, permanently, within a short period of receipt by ministers, civil servants and special advisers.
  • Cabinet Office policy requiring the use of automatic deletion within all instant messaging services.
  • Use for government business of personal devices, email and communications applications in breach, it says, of the government’s own policies.

After Mrs Justice Lang granted permission for the case to go to full judicial review, Clara Maguire, the director of the Citizens, said: “This is a good day for democracy. Lack of transparency has been at the heart of the UK government’s disastrous handling of the Covid catastrophe as today’s parliamentary report points out so clearly.

“It says that a culture of secrecy contributed to tens of thousands of excess deaths. We believe this case goes to the very heart of this problem and we look forward to proving government by WhatsApp is not only dangerous but also unlawful.”

The non-profit organisation argues the use of instant messaging makes it impossible to carry out required legal checks about whether a message should be archived for posterity. Information that could be useful to a public inquiry, or otherwise fall within the scope of a freedom of information request, may be lost as a result.

Cori Crider, the director of Foxglove, said: “Government by WhatsApp is an existential threat to Britain’s historical record. From people in positions of public trust, the law – and the country – require more.”

In July, the information commissioner announced an investigation into the use of private correspondence channels at the Department of Health and Social Care.

A Cabinet Office spokesperson said: “Ministers will use a range of modern forms of communication for discussions, in line with legislative requirements, and taking into account government guidance.”

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