Why are Ministers using private emails?

by Good Law Project

Why are Ministers using private emails?

by Good Law Project
Good Law Project
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Latest: April 29, 2022

It's not the result we hoped for

This morning the High Court accepted the Government’s arguments about Ministers’ use of unofficial messaging services and channels.

The increasing use by Ministers, Special Advisors, and o…

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Boris Johnson, Matt Hancock and Lord Bethell have all been reportedly using private email accounts or WhatsApp for Government business, discussing matters of national importance - from the spread of Covid-19 in care homes to the award of lucrative Government contracts. 

But why would Ministers choose to use personal accounts rather than official channels?

An email exchange between senior officials about a legal case being brought by Good Law Project over a controversial contract is perhaps revealing. The senior official explains that because Matt Hancock conducted his duties as Health Minister using his private email, they think this means there would be a “substantial” threshold for civil servants to request access to his emails to check if they should be disclosed to the Court. 

They seem to believe this is a loophole to avoid scrutiny. If politicians think they can evade oversight from the Courts or dodge Freedom of Information requests by using private email and WhatsApp, the question becomes: what have they got to hide?

Government does have a policy in place about the use of private email, but we don’t think it is fit for purpose - not least because it fails to set out when and why it would ever be acceptable for politicians to use their own accounts. And it seems unlikely the policy is being followed in any event, because there’s no evidence that steps are generally being taken to ensure that information held by Ministers on private emails or WhatsApp is recorded on Government systems. 

We don’t just think this situation is wrong, we believe it’s unlawful. It flies in the face of Government’s legal obligations to preserve official records and undermines its ability to comply with Freedom of Information requests and the duty of candour required by the Courts. 

We are taking legal action. If we are successful, we could force Government to put in place proper policies to close this accountability gap for good. If you believe that Government business should be conducted transparently, please consider donating to this legal challenge. 


Details

Good Law Project has instructed Joseph Barrett and Rupert Paines of 11KBW, and Rook Irwin Sweeney, who are being paid at significantly below market rates. You can read the Pre Action Protocol letter here. 10% of the sums raised will go to Good Law Project to help it develop and support further litigation in the public interest. It is our policy only to raise sums that we reasonably anticipate could be spent on this litigation. However, if there is a surplus it will go to support and enable other litigation we bring.

Image Attribution: Portrait of Lord Bethall, by UK Parliament, license under CC BY 3.0, Desaturated from original and placed over another image.

Update 9

Good Law Project

April 29, 2022

It's not the result we hoped for

This morning the High Court accepted the Government’s arguments about Ministers’ use of unofficial messaging services and channels.

The increasing use by Ministers, Special Advisors, and others, of private email accounts, private and auto-deleting messaging services, and personal phones is a blight on any conception of good governance. 

Vast sums of public money pass hands following deals cooked up, in whole or in part, through these untraceable channels. They make it difficult or impossible for civil servants to act as proper stewards of public money. They pose a profound risk to national security – only last week it was revealed that private channels used in Number 10 had been hacked. And their use guts the clear public interest, which the High Court held [para 3] exists, in good record-keeping.

The Court found it was clear that:

some Ministers, civil servants and unpaid Government advisors have: (1) used private email accounts for communications that relate to Government business; (2) used instant messaging platforms such as WhatsApp for such communications; and (3) made use of auto-delete functions.” 

But before the High Court, Ministers, including the Prime Minister, contended that there was no legal duty on them to avoid that use. 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.

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. 

The Court has granted Good Law Project permission to appeal to the Court of Appeal “in view of the importance of the issues”. You can donate to support the appeal here. All the Citizens (whose case was heard at the same time as ours and which was also dismissed) have also been given permission to appeal. 

This is a very sad day indeed for those who stand against the cronyism and sleaze that characterises this administration. But we will continue the fight for accountability and transparency in the Court of Appeal.



You can read the judgment in full here.

Update 8

Good Law Project

March 22, 2022

Update from Court

The Government has admitted that none of Boris Johnson’s messages from his mobile phone prior to April 2021 are available, as Good Law Project’s legal challenge to Ministers’ persistent use of private communication channels to conduct Government business reaches the High Court. 

We all know the Prime Minister uses his personal phone to discuss matters of national importance. The fact that none of his phone messages were retained when his phone was decommissioned in 2021 is utterly baffling, deeply regrettable, and leaves us all asking the obvious question - why?

While instances of the Prime Minister refusing to make some of his Whatsapp communications available have previously been disclosed, such as during the investigation into the redecoration of his Downing Street apartment, this is the first time that the Government has admitted none of his messages prior to April 2021 are available to be searched.

Sarah Harrison, Chief Operating Officer for the Cabinet Office, confirmed that

In April 2021, in light of a well-publicised security breach, the Prime Minister implemented security advice relating to a mobile device. The effect was that historic messages were no longer available to search and the phone is not active.’

Given the current ‘Partygate’ investigation, as well as the future inquiry into the Government’s response to the pandemic, this has serious implications for transparency and holding the Prime Minister and his Government to account.

And it’s not just the Prime Minister. Our case has exposed a widespread disregard of the rules by Ministers across Government, who have repeatedly used personal email accounts and WhatsApp for Government business. Their chronic use of non-official communications means that vital Government business is being conducted in the shadows - it undermines accountability and it risks our national security.

And despite the Government’s protestations, discussions via private communication channels have not been merely “ephemeral” or “trivial” - instead they have covered important and substantive topics, such as the Government’s overarching Covid-19 strategy, the award of multi-million pound Covid contracts and the discharge of individuals from hospitals to care homes during the height of the pandemic. 

These breaches of Government policies, and of the duty under the Public Records Act to make arrangements for the selection and safe-keeping of records which ought to be permanently preserved, are unlawful. The evidence also makes clear that there are serious consequences of Ministers’ habitual use of private communication channels for Government business, including:

  • the threat to national security: the Government’s own Security of Government Business policy tells Ministers “You should not use your personal devices, email and communications applications for Government business at any classification” and that personal IT will “not be as secure” as Government devices;  

  • the challenge it poses to comply with Freedom of Information requests and duty of candour required by the Courts. Good Law Project has experienced first-hand the difficulties in accessing important disclosure in legal cases when Ministers have used private communication channels rather than official devices and accounts;

  • the lack of transparency it creates, at a time when public confidence in the Government’s decision-making is low. The upcoming inquiry into the handling of the pandemic is a paradigm example of why it is important that communications are capable of being properly recorded, so that Ministers can be held to account. 

We need this Government to put in place policies that are fit for purpose, and then we need Ministers and officials to actually follow them. Their default to opacity does us all a disservice.

Thank you for your support of this case. We will keep you updated on its progress.
Good Law Project team 


Update 7

Good Law Project

Dec. 2, 2021

We have a date

Our judicial review hearing has now been listed for 2.5 days in the High Court from 22nd March 2022. 

Our challenge rests on two important questions. First, why are senior Ministers and officials using private emails and messenger apps like WhatsApp and Signal for official business? And secondly, what measures is the Government putting in place to ensure vital information isn’t being lost, or worse, deleted?

The default has to be to use official channels to conduct Government business. And the Information Commissioner’s Office – whose job it is to uphold and promote openness in public bodies - clearly agrees.

The Government is due to respond before Christmas, and our challenge will then be heard over three days alongside another case brought by The Citizens and Foxglove. 

We’ll see them in Court.

Thank you for your support.

Update 6

Good Law Project

Nov. 5, 2021

We were right all along

Our challenge over Ministers’ use of private emails and messaging apps like WhatsApp and Signal has two simple but important questions at the heart of it. Firstly, why are senior Ministers and officials using private communication channels? And secondly, what measures is the Government putting in place to ensure this doesn’t lead to a colossal transparency black hole?

We’ve always said the default must be to use official channels to conduct Government business.

It turns out the Information Commissioner’s Office (ICO) – whose job is to uphold and promote openness in public bodies – agrees with us, not the Government.

In recently updated guidance, the ICO confirms that the legal position is what we’ve said it is all along: that the Government’s “records management policy should explain that, as far as reasonably practicable, you should always ensure that you use corporate channels for official business”.

But the Government policies we’re challenging do the exact opposite. They effectively encourage the use of private communications, including WhatsApp, for Government business.

Like us, the ICO stresses the importance of ensuring that information is preserved for external scrutiny – such as an inquiry or inquest. And the Information Commissioner makes no bones about the fact that “the suggestion of ministers and senior officials using private correspondence channels, such as private email accounts, to conduct sensitive official business is a concerning one”. We agree.  

The guidance also makes clear that Government’s messaging systems should not use auto-deletion, and communications should be transferred onto an “appropriate retention system” and “not onto a corporate chat function where the information will be deleted after a short time period”. 

This is a central point in our claim. Yet the current Cabinet Office policy dictates that “instant messages history in individual and group chats… should not be retained once a session is finished.  

The ball is now in Government’s court. A responsible Government would hold their hands up at this point. It’s clear that they’re defending a hopeless position; their policies need considerable improvement to bring them in line with the law – and they should commit to doing so.

We keenly await their response – and be in no doubt, we will hold their feet to the fire every step of the way.

Update 5

Good Law Project

Oct. 26, 2021

We're going to Court

Our challenge over Ministers’ persistent use of private emails and messaging apps like WhatsApp and Signal for Government business has just been given a huge boost: the High Court has granted us permission to proceed on all grounds. 

This follows a hearing yesterday before two judges in the High Court. This is a rare occurrence at such an early stage of a case, but a sign perhaps of the importance of the issues involved. 

This is a significant development. We will now have the opportunity to highlight the inadequacy of Government’s policies on private emails and messaging apps. The High Court will also hear of serious and persistent breaches of these policies by the Prime Minister, disgraced ex-Health Secretary Matt Hancock, Lord Bethell and other senior decision-makers. 

This case goes to the heart of the fight for Government transparency. It’s taken months and months of work to get us here - and has only been possible because of regular donations from people like you. 

Conducting Government business away from official channels not only flies in the face of Ministers’ legal obligations to preserve official records, including about key decisions - from care homes to PPE - it also severely undermines their ability to comply with the Freedom of Information Act and their duty of candour to the Courts. 

2020 was the worst year on record for UK Government secrecy. They seem determined to keep it up.  

Our Judicial Review will be heard over three days alongside another case brought by The Citizens and Foxglove, which tackles some of the same grounds as our claim. We will let you know as soon as we have a Court date.

Thank you for all your support.

Update 4

Good Law Project

Oct. 7, 2021

Ministers, private emails and security risks: High Court orders urgent hearing

Boris Johnson and at least three Ministers, past and present - Matt Hancock, Lord Bethell and Greg Hands - have routinely breached national security guidance by using private emails and private messaging apps for Government business. 

This, as Government openly acknowledges, leaves them open to malicious cyber attacks. Use of private emails and private messaging also helps Ministers dodge scrutiny when handling vast sums of taxpayers’ money. 

We have reason to believe that this is the tip of a large iceberg.

Given the issues raised in our claim, the High Court has now ordered an urgent hearing to consider how to take the claim forward.

This is a very welcome development.

Our legal team will be in the High Court in the next fortnight or so. We will keep you updated.

The more people who come together, the more powerful we can be at holding Government to account. You can tell your friends and family about this legal challenge by sharing this crowdfunder on Facebook or Twitter. Or you can send them this link by email: https://glplive.org/private-emails-0710 

Update 3

Good Law Project

Sept. 16, 2021

Boris Johnson breached national security guidance

Boris Johnson and at least three of his Ministers, Matt Hancock, Lord Bethell and Greg Hands, have repeatedly breached their own national security guidance by using private emails and phones for Government business.

The documents, unearthed in the course of our legal action, show Boris Johnson and other Ministers were warned 2 years ago that their personal phones and emails were vulnerable to hackers. And were issued with a ‘Security of Government Business policy’, which explicitly banned the use of private accounts:

“Your personal IT will not be as secure as departmental IT. You should not use your personal devices, email and communications applications for government business at any classification.” (Paragraph 68)

Despite this policy, and for reasons which remain unclear, Ministers continue to use private email accounts, and private devices and communications apps, for government business. We do not understand what good reason there can be for breaching this policy with the additional jeopardy to government and national security… although we can think of a number of bad ones.

And it’s not just one Minister. Or a handful of emails. The breaches are on an industrial scale. Just yesterday we revealed Government’s own lawyers confirmed that searches of the Health Minister Lord Bethell’s private emails using keywords relating to Covid contracts turned up hits of between 18,000 and 36,000 separate documents.

The documents also reveal that No 10’s WhatsApp policy has only been in place since March 2021. Prior to that it seems WhatsApp was not allowed to be used at all for Government business. WhatsApp can only be used for things like: 'confirming who is in the office', 'confirming a time for a meeting', confirming receipt of a document', or 'arranging staff social activities'.

But we know back in March 2020 Ministers, officials and Dominic Cummings were discussing Covid testing progress via WhatsApp group.

How can anyone be certain that critical information is not being lost, or worse, deleted?

The law requires relevant messages to be preserved and recorded. Government has, so far, failed to provide us with any evidence it is acting in compliance with the law. So we’ve filed judicial review proceedings.

This Government is to transparency as vampires are to sunlight. And we will do our damnedest to drag them into the light. But we could use your help. If you are in a position to do so, you can support us here

Update 2

Good Law Project

Aug. 4, 2021

Lord Bethell's phone

Lord Bethell is the Health Minister responsible for overseeing the award of Covid contracts. His time as Health Minister has been mired in controversy: from failing to declare meetings with firms that won huge Government contracts, to using his personal email address to conduct Government business. Good Law Project has a particular interest in the role he played in the controversial award of lucrative contracts to Abingdon Health.

Last week in Court, we argued against the Government’s attempts to apply blanket redactions to documents relating to the Abingdon Health contracts. We were successful – an important step towards transparency.

But the hearing uncovered something more alarming. In sworn evidence, Government admitted that some of Lord Bethell’s dealings with Abingdon had been conducted via WhatsApp or text message, and were held only on his private mobile phone. If that was the case for Abingdon, why not other VIPs too? 

What’s more, in December last year, Lord Bethell was told his mobile phone would be searched for documents relating to this case. Just weeks later, it seems, he ‘replaced’ his phone because, Government lawyers say, it was ‘broken’. They are now not sure it will be possible to retrieve the WhatsApp and text messages.

Lord Bethell has overseen the awarding of billions of pounds of public contracts. Information revealing how these contracts came to be awarded may now be lost – or even destroyed.

During the hearing, the Judge expressed alarm about the Government’s failure to preserve evidence and insisted the ‘Order’ he made at the conclusion of the hearing refer to the Government’s obligation to preserve relevant documents.

Our lawyers have written to the Government to demand answers. When did Bethell learn his phone would be searched? When did he report it as broken? What attempts were made to save crucial information from his old phone? If none, why not?

This Government seems allergic to scrutiny: redacting some documents, hiding others from public scrutiny via ‘confidentiality rings’, permitting Ministers to award billions in public money via private, as well as official, channels, and failing to protect evidence from destruction.

We are taking action to close this accountability gap. If you're in a position to do so, please consider donating to support this challenge.  

Update 1

Good Law Project

July 23, 2021

Government admits more Ministers used private emails

Following the revelations that disgraced former Health Secretary Matt Hancock and Health Minister Lord Bethell used private email accounts for Government business, our lawyers wrote to Government lawyers asking them to confirm they had searched the private email accounts of Ministers for material relevant to our PPE procurement challenges. 

We received an extraordinary response from Government. 

In it Government admits for the first time that as well as Hancock and Bethell – Trade Minister Greg Hands and the PPE Tsar, Lord Deighton – the Tory Peer directly appointed by Boris Johnson and responsible for coordinating the multi-billion pound procurement process – were using private email accounts. 

But still, it refuses to search those accounts. 

We are left with the farcical situation of Government behaving like the three wise monkeys, declining even to look at what business private email accounts were used to conduct.

How can Government lawyers be sure they have complied with their duty to put their cards face up on the table when they won’t even look at their cards? We have the prospect of highly partial disclosure on VIP contracts worth hundreds of millions or billions of pounds.

Government has also so far refused to confirm that relevant emails in Ministers’ personal accounts will be included in the future public inquiry.

The Government is shaping up to be as evasive as possible. But we won’t back down. Support our fight for full disclosure here.

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