WhatsApp in government – a scandal that doesn’t self-delete

by | 7 Jun 2023

The normalised practice of using secret, unrecorded communications in developing public policy was unheard of - until WhatsApp made it routine. We need to do something about it.

One of the problems with many new technologies is that all the wrestling which was done over the regulation of the technology it is replacing (or supplementing) can be invalidated. One of the great problems with the 21st century so far is the normalisation of a culture of ‘how can we get away with it?’ – the ‘hustle’ everyone is so proud of.

Add these together and drop them in the middle of politics and you get… the WhatsApp scandal(s). How many times has this scandal recurred? WhatsApp groups were deeply controversial during the Holyrood inquiry into the Salmond affair and are so again now as Nicola Sturgeon and Rishi Sunak are threatenting to withhold WhatsApp message from their respective Covid inquiries.

The response from the public and the media has been, well, confused – to say the least. I want to argue here that it simply shouldn’t be confusing. None of this should be anything other than clear. Not retaining and handing over WhatsApp messages is clearly a breach (in spirit) of the Ministerial Code.

Let me explain why that is. As Plato dedicated much of his writing to examining, the problem of power is that it has a tendency to corrupt. You can create a monitoring system, but that grants the monitoring system power which in turn can corrupt it (i.e. ‘who watches the watchmen?’). Plato is generally considered one of history’s great thinkers and he barely came up with a credible solution.

This means that the arrival of democracy created a complicated new problem – if our leaders are there to work on our behalf, how do we know they aren’t just working on their own behalf? This is (in part) what leads to the dense bureaucracy of the modern administrative state.

And thank goodness for that. Here are the basic rules for someone who is granted executive power on the back of a democratic mandate (i.e. forms part of a government). You never have a government-related meeting which isn’t attended by a neutral third party (the UK civil service). No meeting or action or decision occurs which isn’t fully recorded and minuted.

If a Minister accidentally or unintentionally finds themselves in a position where they are unable to arrange oversight and proper recording it is their duty immediately to contact the civil service and make sure this is properly recorded in retrospect. If it is not accidental or unintentional (i.e. it was deliberately arranged) then it is a breach of the Ministerial Code.

All correspondence – on paper or by email, in or out – goes through the civil service. If you try to contact a Minister directly about ministerial business you will (or should) immediately be told to redirect that correspondence via the civil service.

As we know (from the Hilary Clinton affair), carrying out government business on a private email account not monitored by the civil service is not legal. As we know (from the current Trump shenanigans), you can be President and you still don’t own government paperwork, you can’t just take it away at will and, say, stash it in a golf club. There. Are. Rules.

The means of communication where I definitely have never done business are utterly apparent to me; for example, I have never accidentally organised the discharge of Covid-positive patients to care homes via birthday cards

I highlight this for a specific reason. If, say, a government Minister and a government advisor made decisions on public policy based on discussions they had via a private email account that was not properly retained, that would be potentially illegal. If policy was made by Ministers who had meetings in private without informing the civil service, that would be potentially illegal. Both would clearly be resigning matters under the Ministerial Code.

But we currently behave as if doing it via a WhatsApp message is an exemption, a loophole. It now seems to be routine that government Ministers in Scotland and London organise business with people via WhatsApp messages, WhatsApp messages which are not monitored and properly recorded for the required length of time by the civil service.

So when either Boris Johnson or Nicola Sturgeon says ‘I’ve been through my messages and there is nothing relevant’, the sound of alarm bells going off should be deafening. I’m not making the bog-standard suggestion that that decision is not theirs to make, I’m going further.

I’m saying that there is a fundamental corruption inside the system if they or anyone else are in a position to withhold that judgement from the civil service in the first place. Again, if they had a secret drawer full of correspondence they’d been deliberately hiding from the civil servants they would be in serious trouble. WhatsApp messages should be no different.

The position I take is very straightforward; any channel of communication of any sort which is used to do any public business becomes public communication. I don’t care if Ministers are on the roof of St Andrews House semaphoring each other, if it is about government business it must be properly recorded.

Which means that if Sturgeon (or Sunak) had to go through their messages to find out if they should be handed over or not, that in itself proves they must be handed over. If these WhatsApp groups were just people sharing baby photos or bitching about colleagues and opponents, that isn’t our businesses. If they are purely about family life, that’s not our business.

So if the person concerned has the slightest doubt that they ever might have done business on WhatsApp, you know where you are – they did. The means of communication where I definitely have never done business are utterly apparent to me; for example, I have never accidentally organised the discharge of Covid-positive patients to care homes via birthday cards.

That in turn makes the picture really clear. If you ever, even once, used a WhatsApp message to do any kind of governmental business, your WhatsApp messages are public property. That does’t mean ‘public’ as in you or me get to see them automatically, it’s public as in ‘a Public Inquiry has an automatic right to these documents whether the politician wants to hand them over or not’.

Indeed it shouldn’t be possible for a government Minister to withhold the messages because it shouldn’t be a government Minister who is the keeper of the messages. If these politicians did business over WhatsApp they should instantly make the declaration to the civil service and hand over all relevant messages.

Or, more accurately, they simply shouldn’t be doing it. And for my money, if they then switch on the ‘time-deleted messages’ function that is verging on criminal. It is deliberately destroying public documents.

Crucial meetings weren’t minuted (or even attended by civil servants), other meetings weren’t even recorded as having happened and decisions were made with no paper trail to explain who made the decision, when and on what basis

This is all really important. Back at the time I warned how hard it would be for a Covid Inquiry to do its job given that for the first six weeks of lockdown the Scottish Government did not produce so much as one side of A4 of written medical advice (this reference and those to follow can be found via the above link). People say ‘but Ministers were acting on the basis of the best scientific advice available at the time’ – great, show us then. Show us the advice they were working on.

There was a disturbingly lax attitude to the proper recording of government business during the Sturgeon years. Crucial meetings weren’t minuted (or even attended by civil servants), other meetings weren’t even recorded as having happened and decisions were made with no paper trail to explain who made the decision, when and on what basis. I think that merits its own inquiry.

When this rubs up against an issue as serious as understanding the lessons to be learned from the pandemic, it becomes of critical importance. Why did Nicola Sturgeon participate in the cover-up of the first outbreak of Covid in Scotland and why did she allow a major rugby international to fill a packed-out stadium the weekend after that case?

What on earth possessed them to send patients who had tested positive for Covid into care homes? As best as I can tell, Nicola Sturgeon is the only world leader who did this. (Others sent people to care homes without testing, but not, as far as I can tell, after testing them and finding them positive).

When did the Scottish Government accept the evidence of asymptomatic transmission? This was recorded by the World Health Organisation in January 2020 and this knowledge was implemented in advice in the UK via the Sage committee in February of that year (when the First Minister was not attending the meetings).

What piece of advice led them to conclude that ‘testing was a distraction’ at the peak of the first wave and why did that advice differ from the World Health Organisation’s ‘test, test, test’ mantra? There are many reasons why Nicola Sturgeon might be reticent about handing over all relevant information (partly because it could expose the lack of relevant information). But this isn’t really about her. It is a much wider problem.

The civil service is failing to act like the Platonic watchdog it is supposed to be. Ministers are gaining much, much too much power over the civil service, power they are using to reduce the ability to scrutinise them. The idea you can do government business by unrecorded WhatsApp message is anathema to the spirit of the Ministerial Code.

My immediate conclusion is that the civil service should now contact every Minister and demand that any WhatsApp chat that infringes in any way on government business contains a group member who is a civil servant tasked with recording anything relevant. Ministers should not be allowed to use self-deleting message systems at all. Ever.

Better still, either set up an official WhatsApp account for Ministers and require them to only use that in correspondence with anyone even tangentially involved in government business and have it properly and permanently recorded and archived – or do it by email. Properly.

In an era of tech-facilitated chancers we need a new approach to our assumptions about the recording of government information. I hope the respective showdowns between the respective chairs of the Covid inquiries and Sturgeon/Sunak clarifies the need to have this debate.

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