Ministers' WhatsApp and personal email use doesn't break law, court rules

Ministers' use of WhatsApp and private email accounts for official government communications does not break the law, the High Court has ruled.

Campaigners argued that these services made it easier to delete information and cover up possible wrongdoing.

But judges decided that existing law on keeping public records said "nothing" about the use of personal devices for government business.

They also ruled that the use of auto-delete software was not unlawful.

The government called the court case "an unnecessary use of time and taxpayers' money".

Campaigning lawyers Foxglove, acting on behalf of non-profit media group The Citizens, and the Good Law Project took the government to the High Court over what they claimed was "government by WhatsApp". It followed revelations that some ministers had used messaging systems and personal emails to send official communications.

Witness statements released during the High Court case revealed that since November 2020 Boris Johnson had been sent a summary of his "red box" - containing prime ministerial business to attend to - via WhatsApp.

He and six other senior ministers had downloaded Signal - an app that can instantly delete messages - to their phones, but this had since been removed from the PM's mobile phone.

It also emerged that no record had been made of the WhatsApp messages screenshot by the prime minister's former aide Dominic Cummings, revealing March 2020 discussions about the Covid pandemic.

The campaign groups argued that the use of personal messaging services broke the 1958 Public Records Act, which governs the rules of official record-keeping, ensuring that important documents are stored in the National Archive.

But the government argued that the legislation did not cover newer forms of personal messaging, such as WhatsApp and personal email.

It also said it had secure channels in place for exchanging sensitive information, and ministers were obliged to record important decision-making discussions with officials.

In their ruling, Lord Justice Singh and Mr Justice Johnson said the 1958 act "says nothing about such matters as whether a person can use a personal device to communicate with others about government business".

They added: "Nor... does it require the production of a record of something in the first place."

The widespread use of instant messaging services such as WhatsApp meant it was often a forum for workplace conversations "that would previously have been undertaken face-to-face" and not recorded, the judges said.

And the act's wording meant there would "in practice be a large measure of discretion [within government] involved as to precisely what 'arrangements' there should be", according to the ruling.

The court heard that government departments had more than 30 separate codes of practice and policies for dealing with communications and whether to record them, and the judges said: "They are not all obviously consistent, either in their substantive content or their terminology."

The court dismissed the campaign groups' claims for a full judicial review, but the Good Law Project said it would seek permission to appeal against the ruling.

Its legal director Gemma Abbott said: "The use of private email accounts by ministers creates information black holes, thwarting Freedom of Information requests and critically undermining public inquiries.

"At a time when trust in politics is at an all-time low, it's shocking that the government would argue in court that there is no issue in running the country like this."

A Cabinet Office spokesperson said: "We have been clear from the outset that there are appropriate arrangements and guidance in place for the management of electronic communications within Government. The Covid pandemic has necessarily required remote working and fast-paced communications.

"This legal challenge has been an unnecessary use of time and taxpayers' money. Today's emphatic ruling in a court of law supports our position on all challenges and vindicates our long-standing position that we have acted in a proper and appropriate manner."