There are “many instances” of crucial decisions made by the government over messaging services being unlawfully deleted, the High Court has heard.

Campaign groups All the Citizens (ATC) and the Good Law Project (GLP) claim ministers are breaching the law by failing to follow policies by deleting messages and using private accounts for government business.

The court heard that the prime minister has used personal WhatsApp accounts as a tool to communicate “critical decisions”.

Boris Johnson was also being sent “confidential information” via the messaging service to his personal device from November 2020, court documents allege.

It was also said messages which were later screenshotted and published by his former chief adviser Dominic Cummings were never being recorded on government systems.

Lawyers on behalf of the government argued that ministers and officials need quick communication and that this was further enhanced by the pandemic.

It was heard that a Cabinet Office policy, requiring the use of automatic deletion of instant messages, falls foul of the Public Records Act 1958.

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Ben Jaffey QC, representing ATC, said the public has “the right to see historically important public records” and the messages should be archived.

He added it is possible to identify “many instances” where messages concerning government business were sent and received on personal devices and were not copied or transferred to government systems for archiving purposes – or were only copied when there was a need to retrieve it for “some particular purpose”.

Private devices used on ‘daily basis’

A witness statement from Sarah Harrison, chief operating officer for the Cabinet Office, says that private devices are used by government officials on a “daily basis”.

Another witness statement from William Vineall, of the Department of Health and Social Care, alleged the PM, ex-health secretary Matt Hancock and other senior officials used personal Whatsapp accounts and email to discuss major government business, including the response to the pandemic.

A further statement said Education Secretary Nadhim Zahawi has previously used automatic deletion WhatsApp on his personal phone for government communication.

COVID increased need for quick communication

The government’s lawyers argued that there is “nothing intrinsically novel or distinct about the use of private email accounts, instant messaging and private devices”.

In their separate claim against Boris Johnson, the GLP is expected to argue over the use of non-government communication channels.

As part of a different claim over millions of pounds’ worth of antibody test contracts, the GLP previously asked the High Court to order searches of Mr Hancock’s government email accounts used for government business – thought to include WhatsApps.

The claims are due to be heard over three days, with a decision expected at a later date.

The hearing continues.

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