Judges dismiss legal challenge over use of WhatsApp and other non-government communications systems for government business

The Divisional Court has rejected a legal challenge over the use by ministers, civil servants and unpaid advisers of non-Government communications systems such as WhatsApp, Signal and private email for Government business.

However, the Court granted the claimants – All the Citizens and the Good Law Project – permission to appeal to the Court of Appeal “in view of the importance of the issues”.

In All the Citizens & Anor, R (On the Application Of) v Secretary of State for Digital, Culture, Media and Sport & Ors [2022] EWHC 960 (Admin) the claimants argued 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.

The claimants said that this was unlawful because:

1. it was incompatible with the Public Records Act 1958 (“the 1958 Act”) and the Freedom of Information Act 2000 (“FoIA”); and
2. it amounted to an unjustified breach of various policies in respect of the use of communication systems, and record keeping.

The claimants also challenged the content of various Government policies, because, they said, those policies authorised conduct that was unlawful (the use of instant messaging services, and auto-deletion).

The Government accepted that Ministers (including the Prime Minister) and officials had sometimes used private communication systems and had made use of auto-delete functions. However, it disputed that this breached the 1958 Act or FoIA.

The Government agreed there had sometimes been non-compliance with policy, but it disputed that its internal policies were enforceable by a court. It said that some of its policies would be re-written in the light of the court’s judgment in this case.

The Divisional Court (Lord Justice Singh and Mr Justice Johnson) dismissed each of the two claims on, in each case, all grounds.

Giving the judgment of the court, Lord Justice Singh noted that section 3(1) of the 1958 Act imposed a duty “to make arrangements for the selection of [public] records which ought to be permanently preserved and for their safe-keeping”. Section 5(3) provided a public right of access to those records that have been put in the Public Record Office.

The Court of Appeal judge said: “In an extreme case, for example if a public body decided to burn all of its records, there would clearly be a breach of section 3(1) of the 1958 Act, since the purpose of the legislation would be frustrated and that act would be irrational. But Sir James [Eadie QC, counsel for the defendants] submits, correctly in our view, that what the Act does not do is regulate the minutiae of precisely what must be preserved, or the manner in which public authorities communicate before they reach the stage of selecting records for permanent preservation.”

Lord Justice Singh said the 1958 Act did not impose an obligation to create public records or to retain any particular public record until a decision was made as to whether it should be permanently preserved.

The duty was “to make arrangements” in respect of those records that should be selected for permanent preservation. This involved a large measure of discretion, the Court of Appeal judge said. It did not impose a duty to retain a record until a decision was made as to whether to place it in the Public Record Office.

In relation to FoIA, Lord Justice Singh said section 1 of FoIA created (subject to exemptions) a general right of access to information held by public authorities. Section 46 required the Secretary of State to provide guidance as to the practice which it would be desirable to follow in connection with the management of record keeping.

The 2000 Act (including any code of practice issued under section 46) did not create a duty to preserve any record prior to the point at which someone seeks to exercise the right of access, the Court of Appeal judge added.

On the issue of policies, Lord Justice Singh said that the fundamental starting point was that they were different from law and did not create legal rights as such: see R (A) v Secretary of State for the Home Department, at para. 3.

Policies often served useful functions in promoting good administration, he added. The Court of Appeal judge said there were undoubtedly situations in which a failure to comply with a policy (without good reason) would constitute a breach of public law but added that, to date, those cases had been concerned with interferences with individual rights.

Lord Justice Singh said: “In our judgement, public law has not reached the stage at which all administrative policies have become enforceable as a matter of law. Policies come in various forms and their content is wide-ranging. Some policies, such as those in the present context, are essentially inward facing and govern the way in which a public authority will conduct its own affairs. They do not concern the exercise of public powers.”

The policies in this case came within that category and were not enforceable as a matter of public law, he added.

Turning to the claims made by All the Citizens and the Good Law Project, Lord Justice Singh said these failed because the policies on which the claimants relied were not enforceable in a claim for judicial review, the policies were not contrary to any legal obligation on the Government and because the legislation did not impose an obligation to create or retain records and did not prohibit automatic deletion.

A challenge to a 2013 policy of the Cabinet Office meanwhile failed for the further reason that the claim was out of time.

Responding to the ruling, the Good Law Project admitted that it was not the result it had hoped for.

It said: “Before the High Court, Ministers, including the Prime Minister, contended that there was no legal duty on them to avoid that use [of non-Government communications systems]. In a decision with profoundly troubling consequences for those with interests in transparency, national security, and public record-keeping, the High Court agreed.

“We are shocked that the Government would contend for such a thing. We think it speaks volumes to the recent collapse in standards of public life.”

The Good Law Project added: “Moreover, and with respect, we obviously do not believe the High Court’s conclusions can, or should, be the law.

“The Court found that the law passed by Parliament concerning the preservation of public records gives the Government ‘a wide margin of discretion’ when it comes to making arrangements for preserving official records. 

“And, on the question of whether the Government is breaching its own policies, including its own Security of Government Business policy, the Court found that the policies do not create legal obligations.”