Legal threat over deletion of sensitive Number 10 party WhatsApp messages

12 Jan 2022

Information Law, Public Law and Judicial Review

Lawyers bringing a court challenge against “government by WhatsApp” have today sent the Government a legal letter warning that it should have preserved text messages about parties held at Downing Street during the height of the coronavirus pandemic.

It emerged last night in the Independent that government officials have apparently been pressured to delete WhatsApp messages relating to the alleged parties. Two sources told the paper a senior member of staff said it would be a “good idea” to delete any messages suggesting they had attended or knew about anything that could “look like a party”.

Non-profit journalism organisation The Citizens, supported by tech justice group Foxglove, are challenging the Government over its failure to preserve critical communications contained in WhatsApp messages and over email, in a case due in court in March.

If true, the Independent’s story would mean the Government is behaving unlawfully. The Government’s Number 10 WhatsApp policy, disclosed at an earlier stage of the case, requires sensitive conversations – such as debates about the appropriateness of a party at the height of lockdown and any staff concerns about undermining government Covid policy – to be held on archived systems: “If you find a chat is unexpectedly developing into a more sensitive conversation, you should move the chat onto the No10 IT system and continue it there.” Deleting these messages would also violate the Government’s FOI Code of Practice on Management of Records.

The Citizens’ judicial review also means the Government is subject to a ‘duty of candour’ – a legal obligation to preserve and disclose all evidence relevant to the ongoing case.

WhatsApp messages sent to government staff about parties that broke lockdown rules would be important evidence both to Sue Gray’s inquiry into the parties, and into the forthcoming formal inquiry into the Government’s handling of the pandemic in general.

Today’s legal letter warns that any member of the Government, or their staff, who followed any instruction to delete these WhatsApp messages is in breach of the law. It also requires the Government’s legal team, under the duty of candour, to find out whether these requests for deletion were made, when, and to disclose this information to our team and the Court.

The Citizens received permission to bring their case against the Government, supported by Foxglove, to a full judicial review in October 2021.

Estelle Dehon of Cornerstone Barristers is one of the lawyers representing The Citizens and Foxglove, alongside Ben Jaffey QC and George Molyneaux of Blackstone Chambers.

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