Matt Hancock’s WhatsApp Covid Messages Leaked – Non-Disclosure Agreements

At the beginning of this month, The Telegraph began publishing excerpts from a trove of more than 100,000 private WhatsApp messages passed by ex-Health Secretary, Matt Hancock, to the journalist Isabel Oakeshott.

The messages included conversations with other ministers and officials and give a glimpse into the way that the UK Government operated during the COVID-19 pandemic. Ms Oakeshott was given copies of the messages while helping Matt Hancock to write his book, Pandemic Diaries.

Amongst other things, the messages revealed that Mr Hancock rejected advice to test all residents going into care homes in England at the start of the pandemic. Professor Sir Chris Whitty, Chief Medical Officer, informed the former Health Secretary that, “there should be testing for all going into care homes” and “segregation whilst awaiting result.” This advice was provided one day prior to the Government releasing its action plan on managing COVID-19 in adult social care settings.

Initially, Mr Hancock said the advice “is obviously a good positive step and we must put it into the doc”. However, in a message later that day to one of his special advisers, he said “I do not think the community commitment adds anything and it muddies the waters.”

Testing for COVID-19 was made mandatory for those going into care homes from hospitals but not for others. This was the case until 14 August 2020 when mandatory tests were required for everyone entering care homes. Statistics show that, between April and August 2020, thousands of people in care homes died due to COVID-19.

Since the leak, Mr Hancock has accused Ms Oakeshott of a “massive betrayal and breach of trust”. Ms Oakeshott has defended herself, claiming that releasing the messages was in the “overwhelming national interest”.  

Mr Hancock has also stated that Ms Oakeshott signed a non-disclosure agreement which provided that the messages would only be used for background for his book and not published, unless relevant.

What are non-disclosure agreements?

A non-disclosure agreement is a legally binding contract between two or more parties – the information providers or the disclosing parties (in the above case, Mr Hancock) and the recipients (Ms Oakeshott) – that outlines confidential information that they may need or want to share with each other and places restrictions on the parties’ rights to use, share or disclose such information.

Non-disclosure agreements are often used by organisations when hiring new employees, workers, contractors, or consultants to protect sensitive commercial information that the person will have access to. Non-disclosure agreements can be either one-way or mutual.

What happens when someone breaches a non-disclosure agreement?

If someone breaches a non-disclosure agreement, the other party could take legal action against them.

In the first instance, the information provider could send the other party a cease-and-desist letter to prevent any further disclosures from being made. If this proves to be unsuccessful, they could then pursue the recipient for damages or attempt to obtain a Court injunction. However, the recipient may be able to rely on the public interest defence and the Public Interest Disclosure Act 1998, which protects whistleblowers.

The Telegraph has said that it will be making further revelations about other parts of the Government’s COVID-19 policy as part of its ‘The Lockdown Files’ investigation. However, a Court injunction would make any additional disclosures a contempt of Court, meaning that The Telegraph could face unlimited fines and/or prison sentences.

What action (if any) Mr Hancock takes will be very much dependent on the terms of the non-disclosure agreement in place.