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Case update 11 November 2022

Private Emails: Update from Appeal Hearing

Over the last two days, Good Law Project has been in the Court of Appeal to challenge the High Court’s decision to allow the widespread use of personal phones, private emails and instant messaging by Ministers, their advisors and senior civil servants, to conduct important Government business.

The first day of the appeal involved submissions from Phillippa Kauffmann KC, representing Good Law Project. She set out our case that it is the Government’s own policies that prohibit the use of private communications by Ministers, advisors and civil servants. These policies require them, in the exceptional circumstances where they have been used, to take steps to ensure that any important public records are moved to and stored in Government systems.

She argued that the Government’s policies – which have been put in place for the purposes of national security and upholding transparency and accountability – are subject to public law principles and should be followed.

She went on to give examples of the use of private emails and messaging systems by various people – including the former Prime Minister, Boris Johnson, his Chief Advisor, Dominic Cummings and former Health Secretary, Matt Hancock. This included evidence of where important discussions about the Government’s response to the Covid-19 pandemic had taken place on private messaging systems and were never officially recorded. She explained that no good reason has been offered as to why those breaches of the Government’s own policies had happened.

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The court expressed concerns that the policies were being broken frequently due to the practicalities of modern working life. In response, Phillippa Kauffman KC  said that the court was being asked to do no more than say that there is a duty to comply with the policies and, if they cannot be realistically followed, the Government is perfectly entitled to change them.

On day two, we heard submissions from Sir James Eadie KC, representing the Government. He submitted that the legislation did not set out a legal duty to comply with these policies. He went on to say that the policies are internal documents, covering a wide range of forms, and not mandatory but rather simply recommended or advised a course of action. He also said that there was good reason for the court to be cautious and that it would not be appropriate for the courts to come down with the heavy hand of the law.

Sir James Eadie KC also argued that GLP lacks ‘standing’ – meaning the rules by which applications can be brought to the courts to challenge decision-making – to bring this case because it lacks sufficient interest in it.

This was disputed by Phillippa Kauffmann KC, who said that there was a legal duty to comply with the policies. She said, on that basis, Good Law Project is seeking a declaration that public bodies subject to these policies are required to comply with them, unless there is a good reason not to do so, and also a declaration that particular examples of conduct by various Ministers, advisors and officials were unlawful as they breached the policies.

In addition, she said that GLP does have standing as it is seeking to represent the interest of the public at large and its reasonable concerns with the Government’s transparency and accountability.

The Court of Appeal gave no indication of when we can expect a judgment, but we anticipate a wait of at least several weeks due to the complexity and importance of the case. We will of course continue to provide updates.

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