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Case update 01 December 2022

A dark day for accountability

The Courts will not control the use by Ministers – in breach of Government’s own policies – of private phones and messaging services, including to negotiate commercial deals with VIPs or share sensitive national security information, the Court of Appeal has this morning ruled

It dismissed the appeal brought by Good Law Project against the High Court decision to the same effect. Given the profound importance of the issue – and the gaping hole in the protection of the public interest exposed by the ruling – Good Law Project plans to ask the Supreme Court to hear a further appeal.

We placed evidence before the Court showing the repeated use of private communication systems by Ministers and their advisors – including Boris Johnson, Dominic Cummings and Matt Hancock – for Government business. Important discussions about Covid-19 were never recorded and are now lost. This means these records are unable to be retrieved or included in the much delayed public inquiry into the Government’s handling of the pandemic.

Boris Johnson, Liz Truss and Suella Braverman have all used private communications channels in ways which threaten our national security and avoid scrutiny. We don’t think that compliance with these policies should be left to the discretion of the Prime Minister and their Ministers. Or that the Government should be able to make rules and then ignore them without consequences. 

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The Government has a number of policies saying that private communication systems must not be used for government business, including a security policy issued in the name of the Prime Minister. However, the Court of Appeal has ruled that these are essentially internal documents, which might potentially lead to disciplinary consequences if broken, or to political sanction, but which cannot be enforced in the courts.  

If we don’t challenge this ruling, there will be no legal route to stop Ministers and their advisors from using their personal phones, private emails and instant messaging services (with messages auto-deleted after 24 hours as standard) for issues of national importance. 

We are also left with a deeply troubling situation where important public records may be lost to history – with grave implications for government accountability and transparency. 

There is also the very important wider point about whether the Government has a legal duty to comply with its own policies when they affect the public at large – which extends beyond this case. 

We think that the position taken by the Court of Appeal is wrong in law. This is not about the court “micromanaging” the Government; it is about the Government’s own policies having legal effect such that they should be followed.

You can read our grounds of appeal to the Supreme Court here and our submissions in support of permission of appeal, here.

Good Law Project is only able to act to protect the public interest thanks to donations from people across the UK. If you’re in a position to support our work, you can do so here.