Stop Government by Exploding Message

by Foxglove and The Citizens

Stop Government by Exploding Message

by Foxglove and The Citizens
Foxglove and The Citizens
Case Owner
The Citizens is an impact journalism non-profit focussed on holding governments and big tech to account. Foxglove is a non-profit who pursue justice in technology.
Funded
on 20th May 2021
£61,815
pledged of £75,000 stretch target from 2,671 pledges
Foxglove and The Citizens
Case Owner
The Citizens is an impact journalism non-profit focussed on holding governments and big tech to account. Foxglove is a non-profit who pursue justice in technology.

Latest: May 21, 2022

We’ve had to rethink.

An update on this case from The Citizens:

Last week, we posted an update that we were appealing the recent High Court decision in our Government by WhatsApp case. It’s a troubling decision becau…

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Senior officials - including Prime Minister Boris Johnson – may be using disappearing message apps like WhatsApp and Signal to carry out government business. These apps allow them to delete messages after they’ve read them or minutes later. This lack of transparency is an urgent threat to democratic accountability and to the future of the public record.

What's at stake?

A ‘government by WhatsApp or Signal’ is undemocratic – and unlawful. So the Citizens, supported by Foxglove, are gearing up to take the government to court. 

The law that protects government records is the UK Public Records Act 1958.  It says that all records about government policy must be reviewed and retained for public archiving. This law covers, for example, messages between a special adviser and a minister about UK Government policy – such as preparations for Brexit or the government response to the coronavirus pandemic. This law requires messages to be retained – so it can be determined whether they should be archived to maintain historical decisions and released to the public. 

The Citizens have already tried to find out more about what is happening. Several requests have been made under the Freedom of Information Act requesting copies of government messages on topics in the public interest. In March, when faced with no reply, the Citizens sent an initial legal letter to the government, raising serious questions and concerns about the use of these apps. To date, and despite chasing, no reply has been received. The next step is a legal challenge to this type of secretive, unaccountable communication. To take this government to Court, we need your help.  

How can you help?

Please support our crowdfunder with whatever you can afford to help us end the use of unlawful exploding messages. A Government of WhatsApp and Signal is undemocratic and unlawful. This evidence belongs to the people and to history. 

How do we know that this type of communication is happening? 

There have been reports and Parliamentary debates which suggest that a growing share of government business is done on instant messaging services. 

What is the aim of the legal challenge?

We will be asking the courts to put a stop to government ministers and advisors from using exploding or disappearing messages to conduct government business.  

Why do we need to raise money? 

Our legal team work on ‘conditional fee agreements’. That means they only recover their costs from the other side if we win. But if we lose in court, we could have to pay the other side's costs. The Citizens are asking the court for a “Cost Capping Order”. If the court grants that it means that there would be a limit on the amount, we can be forced to pay in the event we lose. To make this case possible we need to raise as much as possible. 

What happens to funds raised if we don’t spend it on legal fees? 

If for some reason we don’t need to spend all the donations on this case (e.g., if the government caves in early) then all donations will be split evenly between The Citizens and Foxglove. 

The team 

The Citizens are the claimants in this case. That means it is taking on the government in court.  

They are supported by Foxglove. Foxglove is a non-profit that exists to make tech fair. 

Our case is being taken by a fantastic team of lawyers, including Rosa Curling at Scott-Moncrieff & Associates and Director of Foxglove, Ben Jaffey QC of Blackstone Chambers, George Molyneaux of Blackstone Chambers and Estelle Dehon of Cornerstone Barristers.



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Update 10

Foxglove and The Citizens

May 21, 2022

We’ve had to rethink.

An update on this case from The Citizens:

Last week, we posted an update that we were appealing the recent High Court decision in our Government by WhatsApp case. It’s a troubling decision because it suggests that even when government breaks its own rules, citizens don’t have recourse to the courts to enforce them.

Sadly, we have had to rethink, and have made the difficult decision not to continue with the appeal.

The Citizens is a small non-profit dedicated to impact journalism and holding power to account. This year, our capacity to do this vital work has come under sustained attack. As many of you know, one of our co-founders has been forced to defend a libel case against her – a case which Reporters Without Borders and 19 freedom of expression organisations have called a SLAPP suit (a Strategic Litigation Against Public Participation). This means it is a case intended to chill journalism by draining journalists’ time and creating a climate of fear. We are not afraid. But we have had to spend vast quantities of time defending this case.

This has forced us to take a hard look at what other cases we pursue, and shepherd our time carefully. We have reluctantly concluded that we don’t have the capacity to fight this appeal – and with another claimant still in the mix, we must conserve our strength and allow them to carry on.

We couldn’t have been prouder to stand with thousands of you in this case. We’d like to say a huge thanks to everyone who has been part of this. We couldn’t have got this far without you.

When we first brought the case, the courts awarded a cost cap, so the total amount of adverse fees would be no more than £50k. We will now pay those costs. To those of you who generously donated to help cover the costs of the appeal, we’ll be writing to you to offer a refund. The rest of the pot, sadly, goes to cover the government's costs. You can also email us here appeal@the-citizens.com to arrange your refund.

We started this journey over two years ago and are disappointed in the court’s decision, but we’re proud to have brought a case that has shed important light on the threat to our society and democracy that disappearing messages presents. Thousands of you donated to this case, wrote to your MP, and signed our petition. Together we’ve shown that government by WhatsApp is rampant, and the government breaks its own rules time and time again. That is an issue of huge public importance. We believe that the court has an important role to play, and we hope the Court of Appeal steps in. The team at the Good Law Project have announced they are taking this case to the Court of Appeal, so we will be following their progress closely.

We wish to thank the team at Foxglove Legal and our legal team Ben Jaffey QC and George Molyneaux both of Blackstone Chambers for their expertise and tireless work on this case.

We will now close this fundraising page. If you would like to hear more from us please follow us on twitter @allthecitizens. If you would like to hear more from the team at Foxglove you can sign up here. We will continue our important work and thank you for standing with us.

Update 9

Foxglove and The Citizens

May 13, 2022

We are appealing!

In March, The Citizens’ judicial review challenging government by WhatsApp was heard. To recap: this case, supported by Foxglove, is challenging the use of disappearing message apps like Signal and WhatsApp by government officials, for government business.  

There are laws in the UK that exist to protect and preserve these communications, because they form an important part of our public record. The use of disappearing messages in government poses serious political and legal problems. Evidence of critical government decisions – such as evidence for future Covid inquiries or investigations into Johnson’s partygate – could be lost forever.

On 29 April, we received the judgement and unfortunately while the Court accepted there is widespread rule breaking across government, citing the evidence we provided in our arguments, they dismissed the claim. As the judgment said:

“It is common ground that some Minister, 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 on private devices for such communications; and (3) made use of auto-delete functions.”

Despite the government admitting it doesn’t follow its own rules, the judges decided this was not an issue for the judicial review courts. We disagree, and that is why we are going to ask the Court of Appeal to step in. We sought permission to appeal, and it has been granted by the court.

We’ve been working on this case for almost two years and we are proud to have focused debate on the loss of key public information over WhatsApp and similar services. Everyone from Parliamentary Committees to the nation’s archives to the Institute for Government have now said that WhatsApp Government is a democratic threat. There is more to do and we need your help.

Why we need to raise further funds: 

With your help we have already raised over £55,000. Those funds cover the costs of the case so far. We now need to raise further funds to cover the costs associated with the appeal. We have increased our fundraising target to £75,000.

Because The Citizens is a not-for-profit organisation, we will again be asking the Court to provide cost protection. That means there would be a limit on the amount we can be forced to pay in the event we lose the appeal.

If we win the appeal, you will be offered to the opportunity to request your donation be refunded. If we lose the appeal your donation will go towards paying the other sides’ costs.

Our legal team continues to work tirelessly on conditional fee agreements. That means that they only recover their costs from the other side in the event we win the appeal.

How you can help: 

Please help make the appeal possible by sharing this page and donating whatever you can afford. You can also sign our petition here or write to you MP about this issue here. Thank you for being part of this and we will keep you updated as the appeal progresses.

Update 8

Foxglove and The Citizens

April 29, 2022

Democracy can’t work like this. We’re not giving up.

We have an update on this case. BUT FIRST: thank you for being part of this and for donating to our crowdfunder, you’ve made the case so far possible.

If the government repeatedly violates its own messaging rules – governing by WhatsApp and repeatedly losing inconvenient texts – when should the courts step in? In this case, we said the time was now. Unfortunately, the judges disagreed.

The Court accepted that there is widespread rule breaking across government. There was no answer to our case on the facts, so the Government didn’t try. It just said there was nothing the Court could do – and the Court has agreed.

But we’re not stopping here. We have been given permission to appeal.

We’re proud to have focused debate on the loss of key public information over WhatsApp and similar services. Everyone from Parliamentary Committees to the nation’s archives to the Institute for Government have now said that WhatsApp Government is a democratic threat.

We’re disappointed by today’s result, given the scale of rule breaking this case exposed across government. We aren’t giving up. To win this battle, we’ve got to keep the pressure on. We’ll keep you posted on what happens next, and in the meantime, please keep signing and sharing the petition:

 https://www.foxglove.org.uk/campaigns/boris-johnson-exploding-messages/

Thank you. 

Update 7

Foxglove and The Citizens

March 22, 2022

We are in court!

Today, the Citizens, supported by Foxglove, are in the London High Court to challenge the use of “disappearing message” apps like WhatsApp by government officials to conduct government business.

You might remember that in October the Citizens were granted permission for a full judicial review. That is now happening! Today is day one of a full substantive hearing where the arguments and evidence of both us and the government will be heard by two judges and considered in full.

To recap, this case is challenging the use of platforms like WhatsApp and Signal by government officials for government business. These platforms allow messages to be deleted straight after they have been read. This means they could be erasing the public record of communications about Covid, the parties at number 10, the war in Ukraine and much more.

This is against the law. There are Acts of Parliament that require documents and communications to be kept. For example, the Public Records Act 1958 requires communications between politicians, officials and advisors about government business to be retained for review with key ones saved for historical archives. 

That’s why the Citizens are taking the government to court. Democracy, transparency and accountability are the principles at risk, and they must be defended. We hope that the court will now step in and ensure that we are able to continue to hold our representatives to account.

Thank you so much for supporting this case and we will update you as the case progresses.

Update 6

Foxglove and The Citizens

Oct. 15, 2021

Permission has been granted!

On Tuesday All the Citizens, supported by Foxglove, were in court for a “permission hearing”. In fantastic news, the judge granted us permission and we will now proceed to a full judicial review hearing into government by WhatsApp!

The case is the first of its kind anywhere and aims to stop ministers communicating about government business over apps like WhatsApp and Signal, where messages can be set to vanish into thin air. Government by WhatsApp is a real threat to our democracy and the public record. 

Thank you to everyone who has donated. Your donations have made this case possible. On Tuesday, the judge also granted All the Citizens a protective costs order. That means if All the Citizens lose their case, they will only be liable for the amount they have raised.  

We don’t yet have a date for the full hearing – but we will let you know as soon as we do! Thanks for being part of it. You can help further by signing our petition here and you can see an update from our team outside the court on Tuesday here

Update 5

Foxglove and The Citizens

Sept. 13, 2021

Update: We’re going to court

Thanks to everyone who’s supported our case taking on government by WhatsApp! We have good news and bad news for our backers: over the summer holiday, Deputy Judge Allen denied our application for permission on the papers. This means that instead of our case being heard in court with argument from our barristers and debate on the evidence, the judge decided the government had no case to answer on the papers submitted. 

This regularly happens in judicial review.  And the fight is far from over. We’re challenging the decision by going to a full permission hearing, and we have a court date: 12 October. 

We respectfully disagree with the decision for several reasons. The most important is that our case forced the government to disclose new evidence on disappearing messages – evidence on which we’ve not been heard.  

When the government filed its opposition to our case, it admitted for the first time that it had several secret policies on disappearing messages 

Here you can read news reports in the Times and Daily Mail on just one of these revelations – showing Boris Johnson has been ignoring his own secret policy banning ministers from using personal WhatsApp or email for government business 

But there’s more to come. The case has exposed even more troubling evidence - not yet public - showing the problem with government by WhatsApp is worse still. 

The good news: we now get to argue all of this at a full court hearing. We’ve filed a renewal application for permission.  This means we’ll have a chance to be heard for the first time on the new evidence our case has exposed.  

We look forward to the hearing on 12 October, and these new facts will be public then. 

Thank you for your support – we will keep you updated.

Update 4

Foxglove and The Citizens

July 16, 2021

We've brought the first-ever lawsuit over government use of WhatsApp and Signal

We’ve filed the first ever lawsuit challenging ‘government by WhatsApp’! The Citizens, with Foxglove’s support, are suing the government to stop ministers making major decisions over apps like WhatsApp and Signal, where messages can be set to disappear. 

Since we started this case, yet more evidence has emerged of critical government business being done via WhatsApp. Dominic Cummings released screenshots of WhatsApp discussions on the failures of the test and trace system and the cost of ventilators. The Byline Times quoted a government source saying “The entire COVID-19 response was being conducted over WhatsApp messages.”

This type of communication poses a major political and legal problem, because evidence of critical government decisions – such as evidence for the future Covid inquiry – may be lost. 

This is unlawful under the Public Records Act of 1958 which requires legal checks to be made on all such messages in case they need to be kept for the public interest. That’s why we are going to court!

Today was an important milestone in this case and this has only been possible thanks to the support of the thousands of you that have already donated. Please continue to share this page and donate what you can. 

We will keep you posted on the next steps in the case as soon as possible. Thanks for being part of it. 

Foxglove and the Citizens

Update 3

Foxglove and The Citizens

July 13, 2021

We are preparing the case!

Hello, 

Huge thanks to all of you who have donated so far.

We are in the process of preparing our legal papers and we are about to issue our judicial review. We have just £15,000 to raise to reach our stretch target. Please help us get there by sharing and donating whatever you can afford.

In good news, last week the UK’s data protection authority the ICO announced it was launching an investigation into the use of private correspondence channels by government officials. This shows once again we were on to something back in March when we launched this case.

We will keep you posted. 

Best wishes,

Foxglove and the Citizens

Update 2

Foxglove and The Citizens

May 25, 2021

An update!

Hello,

With a huge thanks to all of you we have reached our fundraising target! Thank you so much.

Here is a quick case update too. We were due to receive a reply from the government on Monday, but they’ve missed yet another deadline. Why won’t they tell us how they’re planning to fix Government by WhatsApp?

We need to keep the spotlight on them. The pressure is working. We will share an update as soon as we receive their reply.

Thank you for being part of this case.

Foxglove and The Citizens

Update 1

Foxglove and The Citizens

May 14, 2021

Thank you for your support so far!

A huge thank you to the thousands of people who’ve donated so far. This case will only be possible with support from people like you.  

We have just 8 days left to reach our fundraising target. Please continue to donate what you can and share this page.   

Foxglove and The Citizens are both small non-profits and together we need to raise £40,000. The stakes are high. We simply won't be able to hold the government to account without you. 

We believe the government's use of disappearing message apps is unlawful and harmful to our democracy.  

An Update on the Case 

On the 26th May we sent a letter before claim to the Secretary of State. This is called a ‘pre-action protocol letter’. In this letter our lawyers set out our legal arguments, we gave him 14 days to reply. His lawyers have now written back to us and asked for more time to reply, to which we’ve reluctantly agreed.  

What Next?  

The government will reply to our legal letter shortly, we will then review what they’ve told us and if we aren't satisfied, we will lodge a judicial review claim with the court. At this point we will ask for ‘permission’ from a judge, to proceed to a full hearing.  

We will continue to update you as our case progresses. In the meantime, please do share this page with your friends and family and on social media to help us have the best chance of success.  

Thanks for being part of it,  

Foxglove and The Citizens

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