After an unsuccessful legal challenge by All the Citizens and the Good Law Project, where next on WhatsApp use in government?

Cassandra Somers-Joce and Joe Tomlinson discuss the use of instant messaging technologies within government, arguing that good government does not mean the eradication of such technology from government practice, but that it must be used in a way that is sensitive to the state’s duties to maintain a record.

The last few years have seen several prominent examples of instant messaging technologies – some with the capacity to auto-delete messages – being used within the UK government. Examples ranging from the articulation of the rationale behind the controversial prorogation of parliament to the securing of government medical device contracts during the COVID-19 pandemic have arisen in the press. Instant messaging technologies clearly play an important role in government communication and decision-making. These technologies are seemingly utilised daily across all levels; for instance, the BBC has reported that since November 2020, Prime Minister Boris Johnson has been sent a summary of his ‘red box’, containing prime ministerial business to attend to, via WhatsApp. These reports of high-profile usage have been followed by the emergence of a Cabinet Office policy that arguably encourages the use of self-deleting instant messaging, and research from the Institute for Government that shows divergent policies on this issue across government.

What should we make of these quickly evolving practices? Instant messaging technologies such as WhatsApp undoubtedly have their benefits for public officials, and the effective functioning of government overall. Perhaps most notably, they can enable officials to exchange messages and share information more easily than other systems. However, they create a range of complexities as regards the preservation of the public record, particularly where these technologies are used in place of documented meetings or official email communications. Not least amongst these complexities is that the use of these technologies engages a variety of public law norms related to governmental record-keeping and the disclosure of information. As practices have emerged, it has become increasingly clear that the use of WhatsApp by the UK government may be at risk of being in violation of these public law norms.

Recently, All the Citizens and the Good Law Project applied for judicial review of the legality of the government’s use of instant messaging technologies for official business. They argued, first, that the use of automatic deletion technology and private email accounts is incompatible with the statutory duty imposed by section 3(1) of the Public Records Act 1958. This duty requires that arrangements be made for the ‘selection of those records which ought to be permanently preserved and for their safe-keeping’. Second, they claimed that the use of these private channels for government business amounts to an unjustified breach of policy (principally, The National Archives’ Records Collection Policy, although there are a large number of relevant codes of practice in this area.

The High Court dismissed both claims at the end of April. On the Public Records Act point, the Court held that the statute imposes only a duty to make arrangements for the selection of certain records, and is not a duty to preserve records as such (see paragraph 55 of the judgment). Correspondingly, the requirement for arrangements to be made for the ‘safe-keeping’ of records is ‘a duty which arises after that selection has been made’ (paragraph 57). On the unjustified breach of policy point, it was held that ‘public law has not yet reached the stage at which all administrative policies have become enforceable as a matter of law’ (paragraph 102). Those policies which will be enforceable as a matter of public law will be those of the type discussed by the Supreme Court in R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52. The High Court appears to suggest that ‘inward facing’ policies which do not involve the exercise of public powers are unlikely to meet this threshold.

This ruling is unlikely to be the end of the issue. The claimants have been given permission to appeal the decision to the Court of Appeal and the reasoning in the decision is highly contestable in that it rests on a narrow construction of the law on both arguments (our detailed view on the law is set out in For the record: self-deleting messages and compliance with public law duties). Putting points of law aside, however, perhaps the most important ramification of the recent judicial review litigation is that it has shone a necessary light on an important area of changing government practice. Whatever position is reached by the courts in the long term, the reality is that government policy and practice on this issue has been shown to be something of a mess.

The present approach to the use of instant messaging apps risks poor decisions being made, either with incomplete information, or with key individuals being excluded from the decision-making process. Departing from formal, organised procedures risks different overlapping group chats and parallel conversations duplicating each other, resulting in chaotic decision-making. This risk of confusion is compounded by the variance of policies across different governmental departments, where such policies exist at all. These inconsistent policies risk making record keeping, and subsequent record disclosure (following a freedom of information request, for example), extremely difficult.

Good government does not require banning the use of self-deleting messaging systems completely, preserving every WhatsApp message sent or otherwise placing unduly onerous legal duties on public authorities. But it does mean ensuring that such platforms are used in a way that is sensitive to the state’s duties to maintain a record, both in legal terms but also more broadly. The availability of a full public record has democratic importance. As Richard Ovenden has highlighted, both retention and preservation are crucial in order for the public to be able to scrutinise the actions of officials. Gaps created by the use of automatic-deletion instant messaging technologies prevent this scrutiny, both now and long into the future (as acknowledged by the High Court at paragraph 58 of its judgment). It is imperative that there is a clear, effective, and uniformly enforced policy that is in line with legal frameworks and ensures that the public record is preserved. Crucially, this policy must ensure that the growing use of WhatsApp amongst public officials—and other technologies with the capacity to auto-delete messages—does not hinder justified areas of governmental transparency. Government still has much work to do to get its house in order in this respect.

For a more detailed discussion of the issues raised in this post, read the authors’ paper, For the Record: Self-Deleting Messaging Systems and Compliance With Public Law Duties, which will soon appear in the journal Public Law. A draft version of the paper is available now.

About the author

Cassandra Somers-Joce is a Researcher at the University of York.

Dr Joe Tomlinson is Senior Lecturer in Public Law at the University of York.