Scottish Government to be forced to hand over Covid Whatsapps to inquiry

26 October 2023, 17:30

The Scottish Government is to be forced to hand over pandemic WhatsApp messages after it was accused of withholding them from the UK Covid inquiry.

In what appears to be a repeat of the row between the inquiry and the UK government, no WhatsApp or other informal communications between Scottish Government ministers, civil servants, scientists and others about its response to coronavirus, have been given to the inquiry despite detailed requests.

And now the Scottish Government has said it will wait for the inquiry chair Baroness Hallett to issue a Section 21 notice to legally compel it to hand in the information, rather than do so voluntarily.

Baroness Hallett had to take the same action when the UK government attempted to stymie requests for Boris Johnson's WhatsApp account, claiming some of the messages involved were not relevant.

At the time she said it was up to her to make the decision on relevance and issued a Section 21 notice. The UK government challenged that through judicial review but failed to overturn the order.

Now the same problem has arisen with Scottish Government messages but the government has said it will wait for a Section 21 notice to be sent.

“The Scottish Government was asked by the UK Covid-19 Inquiry to provide all material related to decision making. It is not the culture within Scottish Government to use WhatsApp for decision making – our records management policy states clearly that government decisions should be recorded in the official record. The UK Inquiry has that material from the official record," said a spokesperson.

“The UK Inquiry has subsequently asked for WhatsApp messages relating to logistics and day to day communication, which of course we will provide. However, given the level of personal information contained within, we need a legal basis to do so, for example in the form of a section 21 order.

“The UK Inquiry indicated at this morning's hearing that it will be issuing us with the requisite legal paperwork to allow us to share those messages shortly.

“The First Minister has also asked the Permanent Secretary to ensure that all steps are being taken within the government to meet the Inquiry’s requests and for the Solicitor General to satisfy herself that the government has met all its legal obligations.”

The revelation that there had been no messages given to the inquiry, was made by Jamie Dawson KC at today's sitting.

He said witness statements from other key decisions makers suggested that WhatsApp, texts, Microsoft Teams and Signal were all used to discuss the Scottish Government's Covid response.

In total, he said, there were 137 message groups being used, which had prompted the inquiry to ask 70 individuals for their messages, as well as information on what groups they were members of and if such groups still existed or not and why some messages were deleted.

"A clear theme of the overall response received from and via the Scottish Government is that although such messaging systems were used in the pandemic response, including by some key decision makers and others, generally very few messages appear to have been retained," he said.

"This is surprising, in particular, in light of the apparent availability of such messages in high volumes within the UK government."

He also said that so far only one individual has voluntarily provided access to "her" messages, but even those were limited without explanation to a five month period.

He added that "very considerable efforts" had been made by inquiry officials to try to get access to all of the information it needed but that "the detail required to understand the full picture has not yet been forthcoming."

However Scotland's First Minister said he would "fully investigate" the inquiry's claims and had ordered Solicitor General Ruth Charteris to investigate the matter.

Speaking in response to questions from Scottish Conservative leader Douglas Ross at First Minister's Questions, he said he was also "seeking assurances" that "do not destroy" notices issued by the inquiry had been "fully complied with, not just by ministers but by every relevant Scottish Government official".

Mr Ross said: "Grieving families deserve answers and full transparency from this Government."

Mr Yousaf said his Government does "take seriously the concerns that have been raised by counsel."

He added: "I can only say to the families listening we will take on board those concerns, we will internally investigate fully, because my understanding, certainly as I stand here today, is that relevant information has been passed over. But if there is any concerns raised they will be fully investigated and I will ask the Solicitor General to investigate them, and of course I will update this Parliament on any of those investigations."

He added it was "simply incorrect" to suggest no information has been provided to the inquiry, adding: "My own statement to the Covid inquiry is over 100 pages long."

But speaking to journalists after FMQs he could not say if ministers used the disappearing message function on WhatsApp, which automatically deletes messages after 24 hours, one week or 90 days, depending on user preference.

He added: "We don't routinely conduct parliamentary business through WhatsApp."

Aamer Anwar, lawyer for the Scottish Covid Bereaved group, which is a core participant in both the UK and Scottish Covid Inquiries, told LBC that the families involved were "devastated" by the revelation that information had not been handed over.

"It was summer 2021 that the governments announced the plans for these inquiries and yet, for some reason, the Scottish Government is now saying that they have not retained any records, or they have and there has been widespread use of auto delete.

"When was the auto delete function used? When did they decide to do that and why has it taken them some two years to tell these inquiries that actually we don't have this material? Why are they giving them the run-around?

"And with the greatest of respect to Mr Yousaf why does he have to refer the matter to the Solicitor General? It's got nothing to do with the Solicitor General who deals with prosecutions.

"We have requested today from the inquiry chair, the use of the power of a Section 21 and what that means is that if the Scottish Government fails to handover material without a reasonable excuse, then they could face a fine and or imprisonment of up to 51 weeks.

"That power was used against the Cabinet Office and against the likes of Boris Johnson and others and it allowed those individuals to focus their minds and provide that material. No individual, no matter how powerful, whether they are in England, Wales, Northern Ireland or Scotland, should be obstructing the search for the truth. Those families, bereaved families, wherever they are from, deserve nothing less than the truth."