Ministers are reportedly preparing to mount a legal challenge to resist handing over Boris Johnson’s unredacted WhatsApp messages to the Covid inquiry, the setting up of which was announced, on 12 May 2021, by Boris Johnson.
An unkind thought, perhaps, but if the former prime minister did not want to risk handing over his personal communications with 40 other government figures, he might have taken more care over its terms of reference.
Or perhaps there’s nothing to fight over: yesterday’s Daily Mail reported that the Cabinet Office claims it does not have the messages anyway (although this creates something of a mystery as to how it is so certain that material it doesn’t have is or is not relevant to Baroness Hallett, the inquiry chair).
And yesterday evening Bloomberg reported that Sir James Eadie QC, the so-called Treasury Devil, has advised the Government that releasing “politically-sensitive” exchanges between ministers would breach Cabinet collective responsibility, which requires confidential discussion.
Regardless, resist cooperating with the inquiry in such a high-profile way would not, to deploy one of the worst phrases in British politics, be a good look for the Government, not least because it would severely undermine Rishi Sunak’s efforts to draw a bright and shining line between his era and that of his scandal-prone predecessor.
Nor is it easy to summon much initial sympathy with the Government’s position – and not only because of the above point about who signed off the inquiry’s powers and terms of reference. If Johnson et al did not want to risk their WhatsApp communications being subject to public scrutiny, it’s not unreasonable to suggest they ought not to have conducted public business on WhatsApp.
And Hallett isn’t wrong to point out that previous decisions by the Cabinet Office on redacting releases aren’t likely to inspire confidence in their judgement on such matters.
But if all that is true, it invites the question of why senior ministers would choose to discuss important business outwith official channels. A few reasons spring to mind.
First, WhatsApp and other instant-messaging technology is increasingly ubiquitous, and the pace of our communicative lives is increasing accordingly.
It is also sufficiently different to and more convenient than email (it didn’t become ubiquitous for nothing) that we can fairly say a secure government equivalent of it doesn’t exist. Add to that the view that “government systems are s**t”, as one source told our editor in October, and at least two reasons why ministers and aides might use it suggest themselves.
For decision makers, it could partly simply be a matter of habit. If you’re used to instant two-way communication, switching tracks to slower official channels cannot help but seem cumbersome.
Perhaps more importantly, it also opens one up to criticism from observers who are also used to the modern pace of communications. It isn’t difficult to imagine an alternative universe where critical decisions, upon which lives perhaps depended, were delayed because ministers stuck fastidiously to the official channels – and ministers are castigated for it, fairly or not.
Then there is the related problem of that old bugbear, freedom of information.
In the before times, most official documents were protected by the 20 year rule (before 2013 it was 30) set out in the Public Records Act. This meant that ministers and officials were free to discuss issues in the knowledge that the details wouldn’t be released until, normally, some time after they had left their posts.
Now, in the golden era of transparency ushered in by the Freedom of Information Act, a huge range of official documents are vulnerable to publication whilst the relevant figures are still in-post.
As government still needs space for private discussion to actually function, this has inevitably led to a change in culture, of which Tony Blair’s alleged “sofa government” was the first iteration. The row over WhatsApp represents the latest clash in the subsequent arms race between official transparency and privacy of deliberation.
This dynamic is not unique to government; Bloomberg’s Matt Levine has written about how the same thing is playing out in American financial regulation:
“In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.”
Perhaps this will encourage a flight back to phone calls or even in-person meetings. But as Levine points out, technology marches on. How long until it is a breach of the rules to discuss official business without having it recorded on your handy, easily-transportable personal headset?
In Lying for Money, his book about financial scams, Dan Davies makes an initially counter-intuitive claim: “It is highly unlikely that the optimal level of fraud is zero.”
His case is that the more any system is freighted with safeguards, the slower and more expensive it becomes to use, and the less scope is left for the sort of pragmatic “grey-market” practices which aren’t explicitly provided for by the system, but upon which its results depend.
At a certain level, this becomes sufficiently burdensome that people start opting out of the official system altogether – in his examples, into less-regulated spaces where the risk of fraud is greater, but the cost of doing business less. When this is sufficiently widespread, Davies argues, you have exceeded the optimum amount of safeguarding; it has become counter-productive.
The parallel with government communications is not exact, but it is clear enough. Freedom of information has its costs, both in terms of financial burdens placed on public bodies and, as Charles Moore as argued, by damaging the historical record. Both that and security requirements come at the cost of the celerity of communication afforded by instant messaging.
Thus, the optimal (as opposed to ideal) level of either security or transparency in government communications is not 100 per cent.
What the right balance between these competing priorities actually lies is up for debate. But it’s a debate we ought to have, and in explicit terms, both so those affected know where the line is and those scrutinising them have a better understanding of the trade-offs involved.
Notwithstanding the specifics of this case, therefore, it would be well if the Government were to bite the bullet and try to refine, or at the very least clarify, the scope and limits of the definition of official communication, and who (and under what circumstances) can demand to see it.