Covid Secrecy row as Jason Leitch deletes WhatsApp messages

That means none were left by the time a "do not destroy" notice was issued by the UK's Covid inquiry, which is looking at decision-making in Whitehall and the devolved administrations between January 2020 and April 2022.

Professor Leitch will have known that a public inquiry into the pandemic was likely. The Scottish Government's own probe was announced on 24 August 2021.

READ MORE: Scottish Government fail to hand over any messages to UK Covid inquiry

Dame Jackie Baillie, Scottish Labour’s deputy leader, said: “Anyone who has destroyed evidence will have betrayed those affected by the pandemic and deferred justice for the families still reeling from the pandemic.

“It beggars belief that the man who was behind many of the most consequential pandemic decisions in Scotland has destroyed vital evidence. Mr Leitch should have the book thrown at him for his dangerous carelessness.”

News of the deleted messages came as the Scottish Government was criticised for withholding key communications from the counsel to the UK inquiry. 

Jamie Dawson KC, said there was evidence that “informal communications," including WhatsApp messages, had been used by "key decision makers" in Edinburgh to discuss “advice received in relation to the pandemic” and “the nature of the decisions which the Scottish Government might have to take.”

Despite this, he added, "the Scottish Government has provided the inquiry with no WhatsApp or other informal messaging material, either in its own possession or in the possession of " officials and ministers.

He said that "very few messages" from the 28-month period being looked at by the inquiry "appear to have been retained" raising fears that they could have been deleted.

Scottish Conservative leader Douglas Ross raised the KC’s comments during Thursday's First Minister’s Questions.

"Grieving families deserve answers and full transparency from this government. So why has Humza Yousaf not handed over key messages to the inquiry?" he asked.

Mr Ross pointed out that the First Minister had previously told media that if a request for messages, including WhatsApp was made, the Scottish Government would be open and transparent.

He went on to say that in June, Mr Yousaf told MSPs: "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."

"The inquiry has heard this morning that that has not happened. So where are the messages? Where have they gone? And has the Scottish Government deleted any messages?" Mr Ross asked.

Mr Yousaf told the Tory leader that the Scottish Government "did not make decisions through WhatsApp, that's not what we routinely did."

That was queried by Mr Ross who went on to say that the First Minister may have inadvertently misled Parliament.

"We know that SNP government ministers do routinely use WhatsApp to discuss government matters. At the end of last year, it was revealed that four SNP ministers were using WhatsApp to conduct government business, Neil grey, Kevin Stuart, Maree Todd, and Humza Yousaf himself."

Mr Ross pointed out that evidence voluntarily handed over by one Scottish Government official to the inquiry proved that the messages existed.

"There is no excuse for not releasing them. So why is this information being inhaled, withheld from grieving families, the inquiry and everyone who deserves answers? "

Mr Yousaf said that was "a complete mischaracterization" of his answer.

"I didn't say that there has never been discussions over WhatsApp, what I said is we don't routinely make decisions over WhatsApp, which was very different, of course, to what the UK Government has done," he replied.

He also said he expected ministers and officials to comply with the Scottish Government's mobile messaging apps usage policy and the do not destroy notices issued by the UK inquiry.

Later in the day, the Scottish Government released a statement in an attempt to clarify their position.

They said they needed Baroness Hallett, who chairs the inquiry, to use her power under the Inquiries Act 2005 to issue a section 21 order compelling them to hand over evidence.

A spokesperson said: “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.

“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.”

In his statement to the inquiry, Mr Dawson said the Scottish Government's response to the inquiry's requests could be "characterised by what I think could fairly be described as a gradual process of information."

"At each stage, more information was revealed which begged more questions and which required further time for response," he added.

The lawyer said there were 137 WhatsApp groups connected to 70 key figures working on the Scottish Government's response to the pandemic.

"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 told the inquiry.

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

He said this state of affairs "merited further detailed investigation" and that he would be seeking clarification of "whether, how and why messages came to be deleted."

READ MORE: Scottish Covid Inquiry : Explained - what can we expect from probe?

Mr Dawson also raised the inquiry's requests for notebooks and dairies from all Scottish Government witnesses.

He said the inquiry was told by the Scottish Government "that the vast majority of the witnesses for whom they are responsible do not hold and may never have held such materials."

Instead, ministers submitted just one digital book with another hard copy notebook currently sitting with the Scottish Government to be reviewed for relevancy.

He said it was "difficult to believe that so few notes would have been kept within the Scottish Government in its complex management of the pandemic when the need to digest complex and voluminous information in short timescales often remotely from usual working locations would tend to suggest that doing so would be an important part of maximising the efficiency of the process ."

They then asked the Scottish Government to confirm that no other notebooks or dairies were held.

"In a not unfamiliar pattern, more information in this regard has come to light gradually.

"The inquiry asked the Scottish Government to provide a clear update on the position of the various Scottish Government witnesses in this regard in advance of today's preliminary hearing, with the result that we have now in fact been told that there are 57 notebooks which have been located with further notebooks being held by an additional four individuals who retain an as yet unconfirmed number."

The failure to hand over messages was also criticised by Aamer Anwar, the solicitor representing the Scottish Covid Bereaved.

He also said the families were "extremely disappointed" by the "seemingly widespread use of the ‘auto delete’ function" used by officials and politicians.

Mr Anwar pointed out that the Scottish Covid Inquiry was announced in August 2021.

"It ought to have been blindingly obvious to the politicians and civil servants from that date, that their contemporaneous messages may be of relevance to a public inquiry," he said.

He urged the probe to "seek to establish with these witnesses what, if any, steps they took after this date to stop the use of the ‘auto delete’ function on their messaging services and what, if any, steps they took to ensure that where there was a change of mobile telephone all relevant messages were retained."

The inquiry has already taken the UK government to court after it refused to hand over messages from former prime minister Boris Johnson. They claimed the messages were irrelevant.

However, the High Court ruled it was up to Baroness Hallett to decide whether the material was relevant or not.

The Information Commissioner’s Office confirmed that ministers deleting 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.