Law on records of government comms is badly out-of-date, WhatsApp court ruling shows
Social media junkie: Boris Johnson is probably deleting WhatsApp messages in this shot.
The Tory government has been crowing after High Court judges said there is nothing in the law to stop ministers from using services like WhatsApp and personal email accounts to make decisions and authorise action.
But this doesn’t mean ministers are justified in carrying out their business away from the official records.
It means the law on what should be counted as a public or official record is badly out of date and must be amended at once.
In fact, let’s face it, there should have been a constant policy of updating as soon as the Internet emerged as the communications revolution it has become.
Prime Minister Boris Johnson has used WhatsApp to make decisions on the procurement of ventilators and on Covid-19 testing in care homes. We only know this because his ex-aide, now enemy, Dominic Cummings took screenshots of the now-deleted messages.
The procurement decisions are important because we know the Tory government paid huge amounts to fellow Tories who were not able to fulfil the contracts, while ignoring experienced firms that could have honoured any deals easily, and lives are certain to have been lost as a result.
And we know that government failures on Covid-19 in care homes certainly led to more than 20,000 deaths there.
Lord Brownlow discussed his funding of Boris Johnson’s Downing Street flat refurbishment with Johnson on WhatsApp, and it has been suggested that he only put up the money because Johnson had made a vague undertaking to consider his “Great Exhibition” idea.
Then-Health Secretary Matt Hancock diverted £40 million to Alex Bourne for vials to be used in Covid-19 tests, despite his having no previous experience of providing medical supplies, after the former landlord of a pub close to Hancock’s constituency home sent him a WhatsApp message.
Lord Bethell claimed that he never used his private email or telephone accounts for official business – but then replaced his mobile phone before it could be searched for information relevant to £85m of PPE (Personal Protective Equipment) deals.
None of the information in the messages mentioned above is covered by the 1958 Public Records Act, so judges at the High Court said it was not illegal to have used WhatsApp, or to have used auto-delete software to remove evidence of the decision-making carried out there:
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.
A Cabinet Office spokesperson said the ruling “vindicates our long-standing position that we have acted in a proper and appropriate manner” – but it doesn’t do anything of the sort. It merely states that a 64-year-old, out-of-date law did not foresee changes in the way we communicate.
Gemma Abbott, legal director of the Good Law Project, one of the groups that took the case to the High Court, had it right when she said, “The use of private email accounts by ministers creates information black holes, thwarting Freedom of Information requests and critically undermining public inquiries.”
For that reason, the law needs to be updated to bring new methods of communication under its authority.
But, having got away with a killing (or, indeed, tens of thousands of them), can you see your corrupt Tory government lifting a finger?
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