Supreme Court refuses permission to appeal rejection of legal challenge over government usage of private communication channels
The Supreme Court has refused the Good Law Project permission to appeal the rejection of its judicial review challenge over the use of private communication platforms such as WhatsApp to conduct government business.
The refusal marks the conclusion of a two-year effort by the legal campaign group to challenge the use by ministers, civil servants and unpaid advisers of non-Government communications systems, which it says undermines public record-keeping.
The legal claim contended that the use of these systems, and also the use of "auto-delete" functions, meant that public records that should be retained were instead deleted or were otherwise not available to be preserved for the public record.
At the Divisional Court in April 2022, the Good Law Project argued that this was unlawful because:
- It was incompatible with the Public Records Act 1958 and the Freedom of Information Act 2000; and
- It amounted to an unjustified breach of various policies in respect of the use of communication systems, and record keeping.
The Divisional Court rejected the challenge, prompting the group to appeal to the Court of Appeal. But the appeal was dismissed in December 2022 in The Good Law Project, R (On the Application Of) v The Prime Minister & Ors [2022] EWCA Civ 1580.
This led the group to make a final bid for its legal challenge to be heard by the Supreme Court, which was also then refused.
Commenting on the Supreme Court's refusal, a spokesperson for the Good Law Project said: "Disappearing WhatsApps and their like have been repeatedly used by Ministers and their advisors – including throughout the pandemic, when making important and costly decisions. These have put our national security at risk – there is evidence that Ministers' phones have been hacked – and led to important public records being lost to history, with grave implications, including for the protection of public money.
"The Supreme Court's decision means we cannot take this issue any further. This leaves the law in a very troubling state."
Reports of government ministers using private platforms, including text messages and private emails, for government business date back to 2011 when the Information Commissioner's Office (ICO) warned such practices should be "actively discouraged".
More recently, in July 2022, the ICO issued a reprimand for the Department of Health and Social Care (DHSC) following an investigation that some protectively marked information was kept in non-corporate or private accounts outside of DHSC's official systems.
The ICO issued a further warning alongside the findings, noting that the lack of clear controls and the rapid increase in the use of messaging apps and technologies for official business risked important information on the government's response to the pandemic being lost or insecurely handled.
Adam Carey
