Continuing our series of articles on the UK Covid-19 Inquiry, we look at the recent evidence around disappearing WhatsApps, automatic deletion from the devices of Ministers and Government officials and what this means for disclosure in future Inquiries.
In addition to leading scientific advisors Sir Patrick Vallance, Sir Chris Whitty and Sir Jonathan Van-Tam making headlines with their evidence at the end of November, the Covid Inquiry also heard oral evidence from a number of high-profile players in the UK's early Covid response. This included Dominic Cummings (Boris Johnson's former advisor), Lee Cain (Former Director of Communications at No. 10) and Helen MacNamara (Former Deputy Cabinet Secretary). In their evidence we heard about the routine use of WhatsApp for communication in government. But to what extent is this allowed, and what are the implications of key government decisions being considered via this medium?
We also heard evidence of the explosive, swear-word laden and 'misogynistic' language used by those working at the heart of government during the start of the crisis. Described widely as a symptom of a toxic culture, should ministers, advisors and others have been able to exchange their unfiltered thoughts when using what could be viewed as a more private and less scrutinised system? And one from which they believed messages would disappear from sight quickly enough?
The cases brought by the Good Law Project
Section 3(1) of the Public Records Act 1958 sets out that "It shall be the duty of every person responsible for public records of any description which are not in the Public Record Office or a place of deposit appointed by the Secretary of State under this Act to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping".
This duty was considered in the judicial review claim brought by the Good Law Project and All the Citizens in 2021 regarding the Government's use of apps for communication such as WhatsApp (aka Non-Corporate Communication Channels (NCCCs)), including the use of auto-delete features, and whether, amongst other things, their use was unlawful and incompatible with the above duty. The High Court[1] found that use of such NCCCs could be permitted in complying with the duty as it did not require records to be preserved but rather required arrangements to be made for the selection of such records. Therefore those records which should be preserved in the national interest could be selected.
In 2022, the Court of Appeal agreed with the judgment of the High Court and found that there was a large measure of discretion allowed for those putting the arrangements in place, especially with the rapid change in the way that we communicate[2].
The earlier decision by the High Court set out the general background to the use of communication systems by different Government departments during the pandemic:
- Ministers, Special Advisors and other civil servants within the Cabinet Office were provided with devices along with pre-installed apps. One was Google chat for the purposes of "ephemeral, logistical or social communications." Work done on these apps was saved to a shared, encrypted repository. Emails were automatically, and instantaneously, exported to the repository. Such communications were automatically deleted after 24 hours.
- Additionally, pre-approved apps including WhatsApp, were available for download and use. Signal was not authorised at the early stage of the pandemic (though was in 2021 for staff at No. 10 on a case-by-case basis).
- Those working in the Department of Health and Social Care (DHSC) were subject to different rules. They were supplied with a corporate laptop on which only DHSC approved apps could be used. There was access to authorised apps but these did not include WhatsApp or Signal. Staff were permitted to download apps which have not been specifically authorised. The use of all apps is subject to "Acceptable Use" and "Information Management" policies.
We have seen evidence in both the UK and Scottish Covid-19 Inquiries of the use of auto-deletion by governments in both Westminster and Scotland, with allegations that such processes were implemented in advance of announcements that the Inquiries would be held.
New Government guidance on use of NCCCs
As of March 2023, there is now new government guidance on using NCCCs for central government business. Key principles of the guidance include reducing the need for the use of NCCCs, that government communications belong to the Crown and must be used lawfully and that regard must be had to codes of conduct and legal obligations.
The guidance notes that "‘Disappearing message’ functions have a role in limiting the build up of messages on devices. You must ensure that any such use does not impact on your recordkeeping or transparency responsibilities". The guidance makes clear that using NCCCs for significant government business will engage record keeping responsibilities and information should be captured in government systems. Significant government business is information that materially impacts the direction of a piece of work or that gives evidence of a material change to a situation. The guidance also covers transparency considerations and states that "deletion or concealment of material relevant to an information request may be a criminal offence". The guidance makes clear that should you use NCCCs you must exercise professional judgment.
Where are we now?
As we covered in our articles in June and July, the Inquiry had ordered the Cabinet Office in April 2023 to produce unredacted WhatsApp messages, diaries and notebooks kept by Boris Johnson (a s. 21 notice). This led to a claim brought by the Cabinet Office to challenge that request saying that the Inquiry was acting outside its remit and that the request included “unambiguously irrelevant material”. Ultimately, the Cabinet Office's judicial review failed on the basis that even if the request yielded some irrelevant material that did not make it unlawful. The Inquiry is entitled to "fish" for documents and return those which it considers irrelevant. It is therefore for the Chair of the Inquiry to determine what might or might not be relevant to the Inquiry and what lines of investigation she wishes to follow.
So it is clear that members of government have scope to use NCCCs, albeit in line with the responsibilities referred to above, and that auto-deletion is acceptable subject to where significant government business is discussed, at which point the content needs to be recorded in a government system. Ultimately, ministers and officials still hold a reasonable level of discretion on how to deal with the content of their WhatsApp messages. Arguably however, a conflict exists between this discretion and the Chair of the Inquiry's desire to seek information that gives context to government decisions. This is particularly so when considering the auto-deletion of messages where a specific request for record retention or a "do not destroy" issue has been issued. It remains to be seen in the Inquiry whether any offences have been committed by witnesses who have deleted Covid-related messages.
Final thoughts
In thinking about your own organisation, and your own potential disclosure obligations, you will need to carefully consider how important and/or material information is preserved especially where there is scope for the information to be relevant either to the Inquiry or another investigation. As discussed above, the Inquiry has wide powers to request disclosure of communications and other documentation. There are also the reputational risks involved where it becomes publicly known that information relating to outcomes which either your own service users or the public more generally has been discarded without the potential for recovery.
Trowers & Hamlins LLP has a wealth of experience advising parties to Inquiries and investigations. We can help ensure your systems are compliant and prepare your organisation for requests for disclosure. Please contact us for further information.
