“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

Preparation for Public Inquiries - Webinar Summary

In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.  

Extradition post-Brexit: plus ça change, plus c’est la même chose?

Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.

The Tail Wagging the Dog - Hourly Rates Review 2021

The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the CJC and the Stewart committee which will come into effect on 1st October 2021.
These new rates are a result of the final report of the Civil Justice Council released at the end of July 2021 and the forerunning consultation that took place between 8 January and 31 March 2021.



What is Next for GDPR in the UK, is Change on the Horizon?

The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174

The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases.  It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.

Regulating working conditions: a ‘one stop shop’ approach to tackling modern slavery

To meet widespread concern about vulnerable workers and working conditions in industries including agriculture, fashion, food and waste disposal, last month (June 2021) the government set up a new watchdog to take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers.

Data Subject Access Requests: The Do’s and Don’ts for Charitable Organisations

A Data Subject Access Request, or DSAR, is any request made by an individual for their own personal data. While they are quick and easy for an individual to make, many long hours and significant resources from your organisation will be needed in order to properly respond.

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.

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