Update 6 July 2023: See Cabinet Office -v- Chair of the UK Covid-19 Inquiry - Courts and Tribunals Judiciary
WhatsApp itself only stores communication for a limited period though messages are stored on the internal memory of individual mobile phones / other devices.
Companies such as WhatsApp have raised concerns that the government's ONLINE SAFETY BILL - (currently at Committee Stage in the House of Lords) - will compromise end-to-end encryption and they have threatened to withdraw the service from the UK if the Bill becomes law.
Encryption plays a critical role in protecting day-to-day digital activities like online banking, shopping, preventing theft of sensitive information in data breaches, and making sure private messages stay private. Of course, encryption also makes the medium attractive to individuals engaged in nefarious activities including online child abuse.
Naturally enough, government Ministers and officials have used WhatsApp extensively. After all, it is easier to dash off a hasty text message than to write a memo, have a formal conversation, or attend a minuted meeting..
In May 2021, Prime Minister Johnson announced a UK Covid-19 Inquiry. Baroness Heather Hallett, a retired Court of Appeal judge, was appointed as Inquiry Chair. Very wide Terms of reference were agreed and published. The Inquiry came into being on 28 June 2022 and operates under the Inquiries Act 2005.
The terms of reference include examination of 'how decisions were made, communicated, recorded, and implemented; ...'
The Act, section 21, empowers the Chairman to require a person to attend (a) to give evidence; (b) to produce any documents in his custody or under his control that relate to a matter in question at the inquiry; (c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.
Section 35 states that -‘A person is guilty of an offence if he fails without reasonable excuse to do anything that he is required to do by a notice under section 21.’ Further, the Chairman can refer matters to the High Court for enforcement - see section 36.
The Inquiry Chair sent a section 21 notice to the Cabinet Office (at Downing Street) seeking specified materials - Section 21 Notice for the Cabinet Office. The materials are set out in Appendices to the section 21 notice and include WhatApp messages recorded on device(s) owned or used by former Prime Minister Boris Johnson.
The Cabinet Office responded with 10 pages of legal argument - Covid Inquiry - GLD S21 Application.. Essentially, the Cabinet Office argued that the Inquiry lacks jurisdiction to request the provision of unambiguously irrelevant material. The actual wording of section 21 permits the Chair to request documents that relate to a matter in question.
The Chair rejected the Cabinet Office argument - Ruling in respect of a S21 Notice issued to the Cabinet Office, dated 22 May 2023.
On 30 May, the Inquiry issued a revision to the section 21 notice giving the government an extension of time - UK Covid-19 Inquiry Notice dated 30 May 2023.
On 2 June, the government opted not to comply with the section 21 notice and issued an application to the High Court for judicial review of the notice. Essentially, the government wishes the notice to be quashed. See Statement of Facts and Grounds (pdf).
The "irony" of the government partially arguing its case on Article 8 of the European Convention on Human Rights will not be lost on many readers with knowledge of the government attacks on human rights in general.
Running along with all of this is the matter of Boris Johnson's own WhatsApp messages. For now, I will be somewhat boring and leave that to one side even though, as with most things with Mr Johnson, it adds a scintilla of intrigue to the story - (Government to take legal action against Covid inquiry over Johnson WhatsApps Guardian 1 June 2023).
It is worth noting in passing that the Inquiries Act 2005 does NOT require that all material supplied to the Inquiry will be published. Firstly, a section 21 notice does not require information to be provided where that information is protected by section 22 - Inquiries Act 2005 section 22 (legislation.gov.uk). Secondly, either the government or the Inquiry are able to restrict what information is made public - Inquiries Act 2005 section 19 (legislation.gov.uk).
Although the government's case is dressed in all the legal finery of a principled judicial review with terms such as kompetenz-kompetenz thrown in for good measure, the government has created the appearance of seeking to avoid scrutiny and possible criticism.
The government set up the inquiry and appointed a highly experienced former judge to conduct it. The terms of reference are extraordinarily wide and it is hard to see how there can be a proper examination of 'how decisions were made, communicated, recorded, and implemented; ...' if the extensively used WhatsApp messages are not made available to the inquiry.
The requested material ought to have been supplied and the inquiry trusted to sift the material and use only what is truly relevant. The decision about what "relates to" a matter in question ought to be one for the inquiry and not for the government.
Update 6 July 2023: