Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve. This called for the release of messages relating to the prorogation sent on WhatsApp and other platforms by prominent government ministers, special advisers and senior civil servants. The government has until 11pm today, 11 September, to comply with the motion. The media reports that Downing Street will not do so. Here we consider some of the legal issues associated with the motion and the use of “private” means of communication in government.
What is an "Humble Address" motion and what did the motion call for?
An “Humble Address" motion is a binding motion which is used by Parliament to demand papers from Government. Non-compliance with the motion can lead to contempt proceedings in Parliament although the actual punishment which can be given is weak. There is no longer any prospect of Boris Johnson or any other members of his team suffering the same fate as Charles Bradlaugh who was reportedly the last person to be imprisoned (in Big Ben) for failing to comply with Parliament’s orders back in 1880.
In summary, the motion sought information falling within the following description:
- all communications relating to the prorogation of Parliament sent to, from or within the present administration since 23 July 2019;
- in whatever form (with the motion referring to a range of communication methods including WhatsApp, Facebook messenger and private email among others); and
- sent or received by certain individuals including Dominic Cummings and Nikki da Costa.
If Number 10 does not comply with the motion, what other legal avenues may lead to disclosure of these communications?
Even if the motion is not successful, there are other possible routes which may lead to disclosure of these communications. The fact that multiple options exist is reflective of the general expectation of transparency on the part of government, subject to certain public interest considerations and exceptions. Notwithstanding the existence of these options, all of them have limitations which may reduce their effectiveness in practice.
1. FREEDOM OF INFORMATION ACT 2000
The most obvious route to access any communications connected with the work of government in its many forms is the Freedom of Information Act 2000. Indeed it seems likely that the Cabinet Office has already or will shortly be subjected to a great number of requests under the Act for the communications sought by Mr Grieve.
It is clear under the Act that just because an email has been sent from what is described as a private form of communication (e.g. such as a personal email address) it does not necessarily follow that the materials will be outside of the scope of the Act. Exactly this issue arose in 2011 in relation to communications between Michael Gove and Dominic Cummings in relation to the former’s time as Secretary of State for Education. The ICO in that case engaged in a detailed examination of whether the material in question was subject to the Act and held that it was. The ICO has published guidance on the approach it will adopt in determining whether information is subject to the Act, with the Cabinet Office also providing guidance to departments on the issues associated with use of private emails.
The obvious downside to this route is the statutory time limit is significantly longer than the time limit imposed by Mr Grieve’s motion, with up to 20 working days allowed and additional time allowed in certain circumstances to apply the public interest test where it is relevant. Discounting the possible or likely need to seek an internal review and or referral to the Information Commissioner (whose investigations often take a number of months) the government could lawfully take until very close to or even after 31 October to comply with a request.
In any event there remains the possibility of exercise of the veto power held by Ministers to prevent disclosure even when otherwise required under the Act. This has proved controversial in other circumstances and would undoubtedly do so here.
2. JUDICIAL REVIEW
As Mr Grieve put it during the debate on the motion “it is the Treasury Solicitor’s Department and the Law Officers’ job to make sure that anything the Government say in litigation fulfils their duty of candour and is not misleading.” The guidance from the Treasury Solicitor, which presumably he had in mind, refers in its opening pages to the oft-quoted judgment of Lord Donaldson MR when he said that judicial review “is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.”
The obligation is often satisfied through the submission of a written statement by an official or ministers explaining the reasons for the decision under challenge and exhibiting relevant documents. We understand this to have been refused in any of the prorogation cases before the courts. The courts will consider applications for and order disclosure of specific documents in judicial review in limited circumstances. However now that the cases across the various jurisdictions already appear destined for the Supreme Court – where the questions will be ones of law and justiciability rather than evidence – it appears unlikely that these communications now will be the subject of disclosure through this route.
3. PUBLIC INQUIRIES
As noted in our blog of 29 August 'The suspension of parliament increases legal scrutiny of Brexit – and possibly a public inquiry?' the latest developments seem to increase the possibility of a public inquiry into Brexit. Were any such inquiry to be undertaken under the Inquiries Act 2005, the chair would have statutory powers to compel the production of documents from any person. This power is backed with the possibility of enforcement by the courts and imprisonment for non-compliance without reasonable excuse. If considered relevant to the work of an inquiry, then these powers could be used to seek access to the communications although there are possible grounds, such as public interest immunity, on which a reasonable excuse for non-compliance could be argued to exist. Much would depend on the attitude of the government in office at that time to the Inquiry’s work generally.
There are a number of potential legal avenues which may lead to the disclosure of the Government communications concerning prorogation and the consequences of leaving the EU without a deal. There are significant limitations around timing and enforcement which can limit their immediate effectiveness in practice, particularly on the current timelines for Brexit. This is presumably what Mr Grieve had in mind when he opted for the use of the Humble Address.
Political rather than purely legal considerations are more likely to lead to a public inquiry being established in relation to Brexit. The same appears to be true here in relation to release of these communications: while many observers will be keen to understand more about what has gone on behind the closed doors of number 10, the limitations of the powers mean they can only really expect to do so if there is sufficient political will for this by the government of the day.