Humza Yousaf has pledged the Scottish Government will “fully investigate” claims from the UK Covid-19 Inquiry that messages, including WhatsApps, have not been handed over.
The First Minister said he has ordered Solicitor General Ruth Charteris to investigate the matter.
He said he is “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”.
He pledged the action after Jamie Dawson KC, counsel to the Covid-19 Inquiry, said while the Scottish Government had been asked to provide “all communications related to key decisions made during the pandemic”, including informal messages on WhatsApp, “no messages” had been handed over.
Scottish Conservative leader Douglas Ross raised the issue with Mr Yousaf at First Minister’s Questions at Holyrood on Thursday, asking: “Why has Humza Yousaf not handed over key messages to the inquiry?
“Grieving families deserve answers and full transparency from this Government.
I can only say to the families listening we will take on board those concerns, we will internally investigate fully— First Minister Humza Yousaf
“The counsel to the inquiry has said they have not received what they asked from the Scottish Government.”
He said “refusing” to hand over the information requested would be an “insult to grieving families” and a “shocking display of secrecy” by the Scottish Government that would “potentially break the law”.
Mr Ross told Mr Yousaf that “crucially one Scottish Government official has voluntarily handed over WhatsApp messages from the pandemic, proving that they exist”, and that there is “no excuse for not releasing them”.
He asked: “Why is this information being withheld from grieving families, the inquiry and everyone who deserves answers?”
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.”
But Mr Yousaf said it is “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.”
He insisted the Scottish Government has “handed over relevant material”.
He added: “There are some messages that we are going to continue to provide but they have to go through the appropriate processes. We will continue to hand over those messages.”
Mr Yousaf also stressed the Scottish Government “didn’t routinely make decisions over WhatsApp” during the pandemic, saying this was “very different of course to what the UK Government has done”.
In a jibe at the Conservative Government at Westminster, where both former prime minister Boris Johnson and his successor Rishi Sunak were issued with fixed-penalty notices for breaching lockdown rules, the First Minister said: “It is not this Government that has broken the law or will break the law.
“This Government will undoubtedly fully co-operate with both the UK inquiry and the Scottish public inquiry too.”
Speaking to journalists after First Minister’s Questions on Thursday, Mr Yousaf 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.”
The First Minister then said “routinely” Government decisions were not made through the app.
Representing Scottish Covid Bereaved at the inquiry, Claire Mitchell KC echoed Mr Ross’s claim that ministers erasing WhatsApp messages “would be a criminal offence”.
She told the Covid-19 Inquiry: “As I touched on before, we are extremely disappointed by the apparent failure by politicians and civil servants to retain messages and the seemingly widespread use of the auto-delete function.
“This does not inspire confidence in the Scottish Government’s approach to its full co-operation with this inquiry.
“Saying we are co-operating is one thing – doing it is quite another, and we are pleased at the robust attitude that’s being displayed by counsel to the inquiry in his approach to obtaining all relevant information held in any way.”
Representing the Scottish Government, Geoffrey Mitchell KC said the requested messages will be given to the inquiry.
He said: “If statements lacked details then we will ensure that they are as full as they can be.
“We will provide the messages that have been asked for.”
Mr Mitchell maintained that Scottish ministers using platforms such as WhatsApp is uncommon.
He added: “The Scottish Government has placed itself at the service of the inquiry.
“It has no reason whatsoever to be unco-operative or slow to respond.
“I am here today to remind the inquiry of those very facts.”
The Information Commissioner’s Office confirmed that ministers deleting the WhatsApp messages could be deemed a criminal offence if they were trying to prevent that information from being disclosed through a freedom of information request.
A Scottish Government spokesperson confirmed the UK Covid-19 Inquiry had asked for “WhatsApp messages relating to logistics and day-to-day communication, which of course we will provide”.
They added that “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”.
They continued: “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.”
