Tag Archives: Joe Tomlinson

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

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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.

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The marginalisation of the House of Commons under Covid has been shocking; a year on, parliament’s role must urgently be restored

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A year ago today, the House of Commons returned from Easter transformed by Covid. Since then, accountability for far-reaching government policy and spending has often been limited, many MPs have been excluded from key virtual proceedings, and whips now hold over 500 proxy votes. Meg Russell, Ruth Fox, Ronan Cormacain and Joe Tomlinson argue that the combined effect in terms of parliament’s marginalisation has been shocking, and that there are risks of government becoming too comfortable with decision-making which evades proper parliamentary scrutiny. One year on, more robust parliamentary accountability must urgently be restored.

A year ago today, the House of Commons returned to business transformed by Covid. Since March 2020, the public has lived under some of the UK’s most restrictive peacetime laws, and to support the economy public money has been spent on a vast scale. Yet parliamentary accountability for, and control over, these decisions has diminished to a degree that would have been unthinkable prior to the pandemic. One year on, with lockdown easing, the restoration of parliamentary control and functioning is now an urgent priority.

This post highlights five ways in which the government’s approach to the House of Commons during Covid has marginalised MPs. In a parliamentary democracy, government accountability to parliament is a core constitutional principle. But in a national emergency, when time for normal process is short, the gravity of the situation can require that parliamentary scrutiny be temporarily sacrificed in exchange for broader accountability. Yet the government has failed to keep its side of the bargain. Too frequently, announcements have been made at press conferences, or briefed privately to the media, rather than presented for democratic scrutiny and questioning by MPs. Ministers have sought extraordinary powers while consistently excluding both the House of Commons as a whole, and certain MPs, from participating in proper oversight.

In the early days of the pandemic necessity arguably justified this approach. But a year on, a real risk exists of damaging precedents being set. This is magnified by the fact that some recent developments have accelerated negative trends predating the pandemic. Unless MPs collectively take a stand against parliament’s continued marginalisation by ministers, what was once extraordinary risks becoming the norm.

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How do you solve a problem like judicial review reform?

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The Independent Review of Administrative Law (IRAL) announced last autumn has been much criticised for both its remit and its process. Joe Tomlinson and Lewis Graham offer an early assessment of the review, highlighting the flaws in its conception and design. They also acknowledge that the recently announced review of human rights seems not to be repeating the mistakes of IRAL.

In our constitutional system, it is a reality that central government wears two hats in relation to the judicial review system: the actor chiefly responsible for the design and management of the system in practice and the key ‘repeat player’ defendant. It is almost inevitable that, from time to time, tensions will result from this arrangement. Indeed, the UK has a rich history of governments of different political stripes ‘clamping down’ on the judicial review system and ‘striking back’ against specific court judgments. When such moments occur, they understandably provoke a form of constitutional anxiety that is familiar in the UK: a sense that the government is allowed to mark its own homework (or at least to exercise influence over the marker). While cyclical anxiety about the position of judicial review and looming reforms may be better understood as a feature not a bug of our contemporary system, startlingly little attention has been paid to the issue of how reform to the judicial review system ought to be considered. 

The importance of the reform process adopted was on display recently when, after being on the wrong side of a series of high-profile court cases, the government announced that the time was right for a new wide-ranging reconsideration of judicial review. It was clear immediately that this review—styled the Independent Review of Administrative Law (IRAL)—promised to be the most expansive policy examination of judicial review in decades. It is chaired by Lord (Edward) Faulks—a former Conservative Justice minister and now a crossbencher in the House of Lords—and constituted of a small group of academics and practitioners. Six months or so later, there has been much angst about potentially regressive changes being proposed and the defence of the current system has been robust. However, at the same time, many have been pointing to what they perceive to be significant deficiencies in the reform process. Features of the IRAL process which have drawn criticism include:

  • Confusion over the parameters of review: IRAL’s formal Terms of Reference have been described by Mark Elliott as ‘replete [with] syntactical errors’ and commentators have drawn attention to a number of ambiguities relating to the scope of the Panel’s mandate. For example, whilst the Review’s Call for Evidence confirmed that it was ‘considering public law control of all UK wide and England and Wales powers only,’ it seemingly left open a number of questions as to how any proposed changes to the law would affect devolved institutions (see here, here and here). The consultation also contains a paucity of relevant information, in contrast to previous consultations, which included details of the specific proposals and empirical data being considered. 
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