“WhatsApp” with Dominic Grieve’s motion for Brexit communications?

11 September 2019

Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve. This called for the release of messages relating to the prorogation sent on WhatsApp and other platforms by prominent government ministers, special advisers and senior civil servants. The government had until 11pm, 11 September, to comply with the motion. The media reports that Downing Street will not do so. Here we consider some of the legal issues associated with the motion and the use of “private” means of communication in government.

What is an "Humble Address" motion and what did the motion call for?

An “Humble Address" motion is a binding motion which is used by Parliament to demand papers from Government. Non-compliance with the motion can lead to contempt proceedings in Parliament although the actual punishment which can be given is weak. There is no longer any prospect of Boris Johnson or any other members of his team suffering the same fate as Charles Bradlaugh who was reportedly the last person to be imprisoned (in Big Ben) for failing to comply with Parliament’s orders back in 1880. 

The full text of the motion recorded can be read on Hansard's website.

In summary, the motion sought information falling within the following description:
 
  • all communications relating to the prorogation of Parliament sent to, from or within the present administration since 23 July 2019;
  • in whatever form (with the motion referring to a range of communication methods including WhatsApp, Facebook messenger and private email among others); and
  • sent or received by certain individuals including Dominic Cummings and Nikki da Costa.

If Number 10 does not comply with the motion, what other legal avenues may lead to disclosure of these communications?

Even if the motion is not successful, there are other possible routes which may lead to disclosure of these communications. The fact that multiple options exist is reflective of the general expectation of transparency on the part of government, subject to certain public interest considerations and exceptions. Notwithstanding the existence of these options, all of them have limitations which may reduce their effectiveness in practice.

1. Freedom of Information Act 2000

The most obvious route to access any communications connected with the work of government in its many forms is the Freedom of Information Act 2000. Indeed it seems likely that the Cabinet Office has already or will shortly be subjected to a great number of requests under the Act for the communications sought by Mr Grieve.

It is clear under the Act that just because an email has been sent from what is described as a private form of communication (e.g. such as a personal email address) it does not necessarily follow that the materials will be outside of the scope of the Act. Exactly this issue arose in 2011 in relation to communications between Michael Gove and Dominic Cummings in relation to the former’s time as Secretary of State for Education. The ICO in that case engaged in a detailed examination of whether the material in question was subject to the Act and held that it was. The ICO has published guidance on the approach it will adopt in determining whether information is subject to the Act, with the Cabinet Office also providing guidance to departments on the issues associated with use of private emails.

The obvious downside to this route is the statutory time limit is significantly longer than the time limit imposed by Mr Grieve’s motion, with up to 20 working days allowed and additional time allowed in certain circumstances to apply the public interest test where it is relevant. Discounting the possible or likely need to seek an internal review and or referral to the Information Commissioner (whose investigations often take a number of months) the government could lawfully take until very close to or even after 31 October to comply with a request.

In any event there remains the possibility of exercise of the veto power held by Ministers to prevent disclosure even when otherwise required under the Act. This has proved controversial in other circumstances and would undoubtedly do so here.

2. Judicial review

As Mr Grieve put it during the debate on the motion “it is the Treasury Solicitor’s Department and the Law Officers’ job to make sure that anything the Government say in litigation fulfils their duty of candour and is not misleading.” The guidance from the Treasury Solicitor, which presumably he had in mind, refers in its opening pages to the oft-quoted judgment of Lord Donaldson MR when he said that judicial reviewis a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.”

The obligation is often satisfied through the submission of a written statement by an official or ministers explaining the reasons for the decision under challenge and exhibiting relevant documents. We understand this to have been refused in any of the prorogation cases before the courts. The courts will consider applications for and order disclosure of specific documents in judicial review in limited circumstances. However now that the cases across the various jurisdictions already appear destined for the Supreme Court – where the questions will be ones of law and justiciability rather than evidence – it appears unlikely that these communications now will be the subject of disclosure through this route.

3. Public inquiries

As noted in our blog of 29 August 'The suspension of parliament increases legal scrutiny of Brexit – and possibly a public inquiry?'  the latest developments seem to increase the possibility of a public inquiry into Brexit. Were any such inquiry to be undertaken under the Inquiries Act 2005, the chair would have statutory powers to compel the production of documents from any person. This power is backed with the possibility of enforcement by the courts and imprisonment for non-compliance without reasonable excuse. If considered relevant to the work of an inquiry, then these powers could be used to seek access to the communications although there are possible grounds, such as public interest immunity, on which a reasonable excuse for non-compliance could be argued to exist. Much would depend on the attitude of the government in office at that time to the Inquiry’s work generally. 

 

There are a number of potential legal avenues which may lead to the disclosure of the Government communications concerning prorogation and the consequences of leaving the EU without a deal. There are significant limitations around timing and enforcement which can limit their immediate effectiveness in practice, particularly on the current timelines for Brexit. This is presumably what Mr Grieve had in mind when he opted for the use of the Humble Address.

Political rather than purely legal considerations are more likely to lead to a public inquiry being established in relation to Brexit. The same appears to be true here in relation to release of these communications: while many observers will be keen to understand more about what has gone on behind the closed doors of number 10, the limitations of the powers mean they can only really expect to do so if there is sufficient political will for this by the government of the day.  

Further information

Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.

About the authors

Emily Carter is a Partner in our Public Law team with expertise in public inquiries, major inquests and internal investigations. Emily also has significant expertise in Data Protection law and the application of the GDPR.

 

Latest blogs & news

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Safeguarding - 5 golden principles for school leaders

Over the past few weeks there has been a steady stream of disturbing stories alleging sexual harassment and sexual abuse of children attending a variety of schools across the country, not just incidents involving children and adults but in many cases peer-on-peer abuse.

EU Member States’ reluctance to extradite their own nationals to the UK

Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.

A review of the SRA's Upholding Professional Standards Report 2018/19

The SRA introduced a new assessment and early resolution process focusing on upfront engagement and delivering, where possible, earlier outcomes on concerns reported to it. Additionally, in February 2019, the SRA introduced a revised Enforcement Strategy, setting out its approach to enforcement and the factors it will take into account when considering whether regulatory action is needed. 

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.

Extradition post-Brexit: the TCA at a glance

The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.

Business and Human Rights Legislation and the Enforcement Question - A report by Kingsley Napley and Dr Rachel Chambers

Globally, a trend is taking shape towards legislation that asks more from businesses than the reporting obligations of the UK’s Modern Slavery Act, in the area of business and human rights.

The UK assumes responsibility for its sanctions policy

Deal or no deal, when the UK’s transition agreement expires at 11pm on 31 December 2020 the country will no longer participate in EU sanctions arrangements or otherwise give effect to EU sanctions regimes. Instead, it will operate a two tier system, devising its own sanctions policies and measures which will be supplemented by sanctions measures imposed as a result of United Nations Security Council Resolutions. 

Regulation and Uptake of the COVID-19 Vaccine

The government has now approved the supply of the Pfizer-BioNTech COVID-19 vaccine. The reason they have been able to do this so quickly is because they have taken advantage of the temporary authorisation regime laid out by the Human Medicine Regulations of 2012 and 2020. The 2012 Regulations were updated in 2020 specifically to facilitate the smooth rollout of the COVID-19 vaccine. In the public consultation preceding the introduction of these updated regulations, several respondents raised concerns regarding unlicensed vaccines and immunity from civil liability. In practice, very little is known about these regulations and their application. This article seeks to shed some light on the temporary authorisation regime and suggest a means of alleviating concerns in the context of “vaccine hesitancy”.

Would the Constitution survive a No-Deal Brexit? The Internal Market Bill and its legal controversies

The Internal Market Bill (the “Bill”) has caused a dramatic fallout at home and abroad. It has faced massive defeats in the House of Lords over the month on November. It was the reported reason behind the UK’s most senior legal civil servant announcing his departure from the Government Legal Service.

Brexit and ‘Physical Presence’ Requirements for Irish professionals resident in the UK

As the end of the Brexit transition period draws near, complexities associated with navigating cross-border regulatory regimes have been increasingly brought to the fore. The Law Society of Ireland’s announcement last week, confirming a ‘physical presence’ requirement for solicitors intending to practise in Ireland, has highlighted wider post-Brexit issues surrounding residency requirements and recognition of qualifications for regulated professionals on the British/Irish border.

Parliamentary scrutiny in the time of Coronavirus

As a new nationwide lockdown comes into effect, Stephen Parkinson and Charlie Roe from our Public Law team, consider the often limited role of Parliament in scrutinising restrictive regulations throughout the COVID-19 pandemic.

ICO enforcement action – key considerations for charities in the GDPR era

It is now more than two years since the Data Protection Act 2018 and GDPR came into force, significantly increasing the enforcement powers of the Information Commissioner’s Office (ICO). With the passing of the Act, the ICO gained the power to issue fines amounting to millions of pounds and increased powers to bring criminal prosecutions against organisations who fail to comply with the data protection regime.

Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review

On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’

Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’

The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.

International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge

In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.

Claiming for maintenance in England when divorcing elsewhere in the EU: Will Brexit close the Villiers loophole?

The Supreme Court recently made clear in Villiers v Villiers [2020] UKSC 30 that divorcing in one EU country does not prevent a party from making a separate claim for maintenance from their spouse in England and Wales. The case therefore demonstrates the possibility of ‘forum shopping’, where a party seeks to bring a financial claim in a jurisdiction (country) that is more convenient or provides a more generous maintenance provision than the jurisdiction in which the divorce is taking place. However, the loophole relies on an application of the EU Maintenance Regulation which will cease to be in force in the UK on 31 December 2020. This blog considers the case of Villiers and how Brexit will affect the current position.

Voter ID laws and the way courts interpret legislation

Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility