In March 2023, the Cabinet Office released an internal policy regulating the use of private communications channels. The policy discouraged the use of platforms such as private email, WhatsApp, or SMS for official government business. It superseded, and marked a break from, a previous policy which had appeared to encourage the use of these channels by ministers. A year on from the updated policy, WhatsApp continues to be used prolifically across Whitehall. This continued usage is fuelling a decline in trust in government by obfuscating decision making and preventing accountability.
The use of WhatsApp for government business have been ubiquitous for a number of years. Caroline Lucas MP reported allegations that the decision to prorogue Parliament had been taken “not through the official channels of government emails and memos, but by personal email, WhatsApp and “burner” phones” in a House of Commons debate in September 2019.[1] Oral evidence before the 2021 Treasury Committee inquiry “Lessons from Greensill Capital” demonstrated the role that WhatsApp and SMS played in David Cameron’s lobbying on behalf of Greensill Capital. Most recently, the evidence before the Covid-19 Inquiry has exposed the extent of the use of WhatsApp to take key decisions throughout the pandemic. Many WhatsApp messages exchanged by those involved in pandemic leadership are now in the public domain, with the Telegraph’s “Lockdown Files”, released in early 2023, containing some 100,000 messages sent between Matt Hancock and other ministers and officials at the height of the Covid-19 pandemic. The use of WhatsApp to manage pandemic response was not limited to Westminster. Scotland’s Information Commissioner has now launched an inquiry into the deletion of WhatsApp messages sent during the pandemic by Nicola Sturgeon, the then First Minister of Scotland, in addition to other SNP ministers and their civil servants.
The Cabinet Office policy operative throughout such events in Westminster and Whitehall permitted the use of private communication channels by ministers. It detailed that “civil servants and ministers are generally provided with access to Government email systems” but that “[o]ther forms of electronic communication may be used in the course of conducting Government business”. With respect to the retention of information detailed in private communications, the policy provided that “a record need only be retained if it is needed for substantive discussions or decisions in the course of conducting official business…ephemeral or trivial emails need not be retained even if generated in the course of conducting Government business, and should be deleted on a routine basis”.
This policy was updated in March 2023, following the use of WhatsApp in government being challenged through litigation brought by All the Citizens, and an investigation by the Information Commissioner’s Office which resulted in the release of a Practice Recommendation. The new policy discourages the use of “non-corporate communications channels”, in particular in circumstances where these channels are used on personal devices. The policy emphasises that “Government communications belong to the Crown and must be handled lawfully” [5]. It advises that private communications channels ought to be used only in “exceptional circumstances” [10], with any “disappearing message” functionality having only a limited role in the build-up of messages on devices [24]. The policy refers to the record-keeping duties which may be engaged where private communications channels are used in the course of official business, highlighting the importance of recording communication where necessary. It notes at [8] that “any use of [non-corporate communication channels] for significant Government business engages your recordkeeping responsibilities”. Those to whom the policy attaches are encouraged to take a note of private communications which contain information related to official governmental business.
Whilst superficially signalling a move towards improved practice, the new Cabinet Office policy appears to have had little impact on the extent to which WhatsApp is used. An October 2023 POLITICO article reported that “one government official said “about half the Cabinet” now uses a disappearing messages timer”. The same article reported a former senior Special Advisor commenting that the use of WhatsApp with automatic deletion functionality had ““become more popular” since the Government lost its legal fight with the COVID Inquiry.” In December 2023, the Guardian reported that Sir David Omand, the former head of GCHQ, had called for the Government to stop handling crises over WhatsApp. Omand suggested that the platform was inappropriate for important decision-making, and that “proper process” ought to be followed.
The continued use of WhatsApp for official decision making is a cause for concern. The High Court ruling in Cabinet Office v Chair of the COVID-19 Inquiry [2023] EWHC 1702 (Admin) that the Inquiry should have access to unredacted WhatsApp communications recorded on certain devices has been frustrated by multiple failings to retain messages which detail decisions being taken. Reports detail that both Boris Johnson and Rishi Sunak have been unable to comply with the ruling because they have “lost” WhatsApp messages covering crucial periods in the UK government’s COVID response. Similarly, Freedom of Information Act requests from the think tank These Islands have demonstrated that Nicola Sturgeon, along with others, failed to store any WhatsApp messages pertaining to the management of the pandemic on her corporate record. Reports that WhatsApp usage throughout the Government continues despite demonstrable failures to keep records of decisions taken via WhatsApp pose difficult questions for the future of governmental accountability and scrutiny.
This comes at a time where public trust in political parties, and in Parliament, is strikingly low. The 2023 Ipsos Veracity Index revealed that the proportion of people who said that they trust politicians and government ministers to tell the truth have reached their lowest scores since the survey began in 1983. The ONS statistics for 2023 demonstrate that 68% percent of people have low or no trust in political parties, with 57% of people having low or no trust in the UK Government. As the Financial Times suggested recently, the collapse in trust in the UK political institutions is alarming, and “is something that all political parties need to think about”.
The OECD has identified five public governance drivers that can influence trust in government institutions: integrity, responsiveness, reliability, openness and fairness. There is a close relationship between transparent decision making and public confidence in decision makers, as the Information Commissioner has made clear in a recent statement concerning repeated failures to comply with Freedom of Information Act requests. Addressing the prevalence of governmental use of WhatsApp would encourage the openness needed to improve public confidence in those who govern.
Improved openness could help to build public trust in government in a number of ways. First, it would allow decisions to be properly scrutinised. As Hannah White writes, “when done well, scrutiny increases the chances of government failures being identified (and avoids their repetition), allows the concerns of the public to be raised and enables new policy ideas to emerge from outside government”.[2] Scrutiny is important, yet relies on the existence of an accurate, comprehensive, and accessible underlying record. Second, communication via platforms which allow automatic deletion contributes to a sense that government officials are seeking to avoid accountability by obfuscating decision making. It is possible that prohibiting decisions from being taken via such platforms would improve the public perception of the Government by discouraging behaviour which may be viewed as underhand.
Ultimately, it appears that the culture of government by WhatsApp has not changed significantly following the release of the Cabinet Office policy last spring. The consequences of non-compliance continue to be illustrated, for instance by the failure to put evidence before the Covid-19 Inquiry. Continued non-compliance with the policy acts as a fetter on scrutiny. It prevents accountability and consequently erodes trust in the political institutions. Practice must come into line with policy in this respect.
Cassandra Somers-Joce.
Cassandra Somers-Joce studied law at Oxford University, where she is currently a non-stipendiary lecturer. She has previously taught public law at King’s College London, in addition to holding research roles at the University of York and Durham University.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] HC Deb 9th September 2019, vol 664, col 552.
[2] Hannah White, “Held in Contempt: What’s Wrong with the House of Commons?” (2022)