The UKs third highest court has recently been addressed with claims of lack of governmental transparency that threatens democracy. Transparency campaigners claim that the use of Whatsapp for communication between ministers and government officials is unlawful and undemocratic as messages can be self-destructed and there are no public records that address any conversations and transactions made.
The use of encrypted messaging apps by people in positions of power is of considerable public importance, particularly in the time of the pandemic as decisions that directly affect public health and pandemic restrictions can be made between individuals with no legislation or external regulations. This not only allows for abuse of power when it comes to decision making but hinders transparency between the government and the public.
Naturally, light shed on this issue has raised concerns and transparency campaigners have “accused ministers of conducting the government by Whatsapp '' (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”) after it surfaced that a series of messages regarding government Covid policies had disappeared from Boris Johnson's phone (Walker). Not only does this threaten traditional democracy but also the right of the public to transparency under the social contract.
In order to tackle this issue, two separate cases were taken to court. The first one was brought on by a group of campaigners called All the Citizens and the non-governmental organisation called foxglove that aimed to tackle “the use of disappearing messages and auto delete functions.” (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”) The second case was initiated by The Good Law Project and observed the use of private devices as a facilitator for communication between government officials.
Defendant Ben Jaffery who represented the Citizens claimed in court that the deleted messages could hold value as “public record for future societies” and that the disappearances of messages puts “parliamentary democracy in danger.” The Citizens also argue that the use of features that allow automatic deletion of messages is a breach of the Public Records Act (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”). The executive director of the Citizens said “It’s extraordinary that we’ve had to come to court to try and get answers. Our evidence reveals disappearing messages have been used time and again. This period, Boris Johnson’s government, will be a black hole for future historians.” (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”)
In response, the government counter claimed that it is not undemocratic nor unlawful for ministers to use private devices as they have the right to choose how to communicate and the use of private messaging apps is “common in modern workplaces.”
However, evidence submitted to the court includes several witness statements that show key figures in government using personal devices and auto-deletion within their communications. These figures include Domonic Cummings (Boris Johnson's chief advisor), many of the secretaries in the Cabinet Office and most of the Cabinet Office ministers. There is further evidence demonstrating that “the prime minister requested summaries of his “red box” submissions by WhatsApp to his personal phone, even though No 10 policy prohibits the use of the platform for “non-trivial communications.” (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”)
The government's final response was that although messages sent via messaging apps are private, they are not altogether inaccessible and can be retrieved from archives on request. Although their use should perhaps be discouraged, it should not be banned because it is very much possible to use these encrypted features democratically and lawfully. In a written submission, the government's legal team argued that “The claims advanced are detached from the reality of current working practices. The modern working age is defined by instant and fast-paced communications.” (“UK Ministers Accused of ‘Government by WhatsApp’ in Court”)
As of 23rd March 2022, the cases continue.
“UK Ministers Accused of ‘Government by WhatsApp’ in Court.” The Guardian, 22 Mar. 2022, www.theguardian.com/law/2022/mar/22/uk-ministers-accused-of-government-by-whatsapp-in-court.
Walker, Peter. “Government Work Often Done on WhatsApp during Covid, Says Top Official.” The Guardian, The Guardian, 22 Mar. 2022, www.theguardian.com/law/2022/mar/22/government-work-often-done-on-instant-messages-during-covid-says-top-official.