Lawyers working for the UK Covid-19 inquiry’s legal team believe the “majority” of WhatsApp messages shared among Scottish government officials during the pandemic have been deleted.
Humza Yousaf has been urged to refer himself for investigation after being accused of breaking the ministerial code over the scrubbing of electronic messages.
The Times revealed this week that Professor Jason Leitch, Scotland’s clinical director, cleared his messages every day so does not have any left from the outbreak of the virus.
As part of the inquiry, key decision-makers, including ministers, former ministers and senior civil servants, have been asked to disclose communications, including those through informal channels such as WhatsApp, Microsoft Teams or Signal.
Yousaf, the first minister, ordered an investigation by Scotland’s solicitor-general after Jamie Dawson KC, the lead counsel in the Scotland module of the inquiry, told the hearing on Thursday that the Scottish government had not yet handed over messages.
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A note to the inquiry from Dawson and its legal team, published after the hearing had closed, said that it understood that the majority of messages may have been deleted.
“It is currently understood that although WhatsApps appear to have been used to send messages relating to and surrounding key decisions by some members of Scottish government, the majority of the messages have not been retained by witnesses,” the note said.
Dawson said there was a “lack of certainty” about what material was held by the government and its officials, where it was held and what could be recovered, and the inquiry has sought more information about the circumstances in which the messages were not retained.
Dame Jackie Baillie, Scottish Labour deputy leader, called for an investigation into whether Yousaf misled Holyrood after he pledged in June that all correspondence would be given to both the UK and Scottish Covid inquiries.
In a letter to the first minister that referenced Leitch’s deleted messages, she said: “This new evidence strongly suggests the statements you made in parliament were not accurate and you may therefore have misled parliament. At the least there must be an investigation into whether this constitutes a breach of the ministerial code.”
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When he was questioned about handing over material during first minister’s questions in June, Yousaf said: “To ensure that there is simply no doubt whatsoever, any material that is asked for — WhatsApp messages, emails, Signal messages, Telegram messages or whatever — will absolutely be handed over to the Covid inquiries and handed over to them in full.”
This week he said during question time that his “understanding, certainly as I stand here today, is that relevant information has been passed over”.
In her closing remarks at Thursday’s hearing, Baroness Hallett, the inquiry chairwoman, said that substantive hearings about the Scottish response, due to take place in January, would not be postponed and she would not hesitate to use statutory powers at her disposal to obtain the relevant information.
In a filing to the inquiry, the Scottish government’s legal team asked to be served with a Section 21 notice, which would compel it to hand over messages. The submission also “respectfully disagreed” with the assertion that the Scottish government’s position on WhatsApp was incomplete.
Alexander Burnett, the Scottish Conservative chief whip, has called on ministers to “come clean” on whether messages were deleted.
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He said that all Scottish government ministers and relevant senior officials should be “fully transparent” as to whether messages on WhatsApp or any other messaging platform had been deleted.
This should include Nicola Sturgeon, the former first minister, John Swinney, the former deputy first minister, and Jeane Freeman, the former health secretary, who were at the forefront of the Scottish government’s response to the pandemic.
The Scottish government issued “background information” to journalists that denied Leitch deleted his WhatsApp messages every day, in direct contradiction of what a senior official said when first approached by The Times.
It also said that official guidance “makes clear that information and records shall be retained only as long as they are required to support Scottish government in its business requirements and legal obligations” and that the guidance was followed.
The government said it would respond to Baillie “in due course”.
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Shona Robison, the deputy first minister, said: “All ministers and civil servants, including the national clinical director Jason Leitch, have been co-operating fully with the Covid-19 inquiries since their establishment.”
She said it was not “practical, cost-effective or necessary for any organisation to retain every exchange that everyone working within that organisation creates”.
Robison said that more than 13,000 documents have been sent to the UK inquiry from the Scottish government, adding: “While it is not the culture within Scottish government to use WhatsApp for decision-making, our records management policy states clearly that government decisions, however they are made, should be recorded in the official record.”
A spokeswoman for Nicola Sturgeon said: “Nicola will continue to provide all information requested by the inquiry that she holds and will continue to co-operate fully with both the UK and Scottish Covid inquiries.
“She has recently submitted her third written statement to the UK inquiry — running to around 200 pages — and expects to give oral evidence again next year when she will answer all questions put to her.”
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The SNP said: “There has never been any hesitation by former members of the Scottish government to provide any and all information they hold, when appropriately and legally requested by the UK and Scottish inquiries, and they will continue to co-operate fully. It would not be appropriate to comment further.”
