PRESS RELEASE – 26 OCTOBER 2023 – “SCOTTISH GOVERNMENT FAILS” TO HAND OVER WHATSAPP MESSAGES AND OTHER MATERIAL TO UK INQUIRY
“SCOTTISH GOVERNMENT FAILS” TO HAND OVER WHATSAPP MESSAGES AND OTHER MATERIAL TO UK INQUIRY CRIMINAL SANCTIONS SOUGHT
Aamer Anwar- Lead Solicitor statement on behalf of the Scottish Covid Bereaved, following our submissions to the UK Inquiry this morning
“This morning the Module 2A hearing preliminary hearing for the UK Covid-19 Inquiry into the political and administrative decision making in Scotland took place. The revelations are devastating. Our Counsel Dr. Claire Mitchell KC made our submissions on behalf the Scottish Covid Bereaved.
The families we represent deserve the truth. The Scottish Covid Bereaved find it inconceivable that the most senior figures in the Scottish Government from Former First Minister Nicola Sturgeon, DFM John Swinney, Kate Forbes to the present First Minister Humza Yousaf failed to retain their WhatsApp messages over the 2-year period of the pandemic. None should be above the law, whether it be the UK Government or Scottish Government.
The UK Inquiry fought a successful battle to retrieve the WhatsApps of those operating at the highest level at Number 10, why should those in the Scottish Government be any different. The release of WhatsApp, social media and diaries for the UK Inquiry has been critical in building a picture of the state of preparation or rather lack of for the pandemic, as well as exposing the sheer incompetence at the heart of the UK Government.
We are aware from the materials disclosed, and evidence thus far led, in Module 2 of the critical importance of contemporaneous notes and messages from civil servants, special advisors and politicians in establishing how core political and administrative decisions were made and the reasons why those decisions were made.
The release of WhatsApp, social media and diaries has been critical in building a picture of the state of preparation or rather lack of for the pandemic, the impact of decisions, and the attitudes and conflicts that existed in liaison with the Devolved Administrations. We are astonished by the terms of the table provided by the Scottish Government on its position, and that of all relevant Scottish Government witnesses, as regards their use of WhatsApp and other electronic messaging services, and the use and retention, or otherwise of notebooks and diaries.
We note that on the 4th of June 2023 on BBC Scotland’s Sunday Politics programme, former health minister Jeane Freeman was asked about the front page Sunday Mail headline that raised the fact that Aamer Anwar & Co., had asked for all WhatsApp messages and other materials to be released.
Ms Freeman stated:- “I’m sorry to say it but the Sunday Mail story is a non-story. Nobody’s asked for these WhatsApp’s yet for the Scottish Inquiry, so therefore nobody’s refused. So the idea of demanding that you get something that nobody’s yet asked for and nobody’s yet refused to give is not a story as far as I’m concerned.”
From the above exchange we concluded that WhatsApp messages remained in existence (at least for Ms Freeman). At the preliminary hearing in London on the 1st March we stated that anything less than full disclosure would be considered as an attack on the integrity of both the UK and the Scottish Public Inquiries by the Scottish Covid Bereaved.
We note that the ICO office has already warned Government officials that deleting messages that could relate to investigations into alleged rule-breaking parties at 10 Downing Street and other departments would be a criminal offence.
The Scottish Covid Bereaved believe it is an important principle of government transparency and accountability that official records are kept of key actions and decisions, relevant information that exists in the private correspondence channels of public authorities should be available and included in responses to information requests received.
The Freedom of Information Act 2000 (FOIA) requires a Code of Practice providing a framework for public authorities to manage information and records and to comply with their obligations under FOIA and other relevant legislation, such as the Public Records Act 1958. The Code makes clear that public bodies should keep information if it needs it for reference or where there may be a Public Inquiry.
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. From CTI’s note, it appears that the majority of the relevant messages have not been retained by individuals. Module 2A will cover decision making between January 2020 and April 2022. On 24 August 2021, the Scottish Government announced plans for the Scottish Covid Inquiry.
It ought to have been obvious to the politicians and civil servants from that date, if not earlier, that their contemporaneous messages may be of relevance to a Public Inquiry. It is requested that the Inquiry 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. While there is only a short time remaining before the commencement of the substantive hearings, we would be grateful if the Inquiry take all possible steps to retrieve these crucial messages.
Today it is difficult to accept that the most senior Scottish politicians, making crucial decisions affecting the lives of everyone in the country, were able to attend numerous meetings, have sight of scientific and medical papers, and take decisions without apparently taking any notes to assist them in their decision-making process.
We are aware that the former First Minister, Nicola Sturgeon MSP, has recently signed a deal with a publisher to publish her memoirs in 2025. In the press release accompanying the announcement of this deal, Ms Sturgeon is quoted as saying that she aims to chronicle the key events of the past three decades of Scottish and British politics and take the reader behind the scenes to describe how it felt to ‘be in the room’, who else was there, the relationships involved, and how decisions were arrived at.
According to the publishers, these will include the events of Covid. It is difficult to understand how a politician can provide an accurate account, several years removed, of being in the room, who was present, the relationships involved, and how decisions were arrived at, without having any contemporaneous notes to assist them.
The Scottish Covid Bereaved believe it is an important principle of government transparency and accountability that official records are kept of key actions and decisions, relevant information that exists in the private correspondence channels of public authorities should be available and included in responses to information requests received.
On 24 August 2021, the Scottish Government announced plans for the Scottish Covid Inquiry, they promised a robust and transparent inquiry, this latest news is viewed with deep cynicism as to the motivation.
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.
We are requesting that the Scottish Government be asked to provide a formal response as to why that the Inquiry and CP’s were told in relation to critical witnesses, that there were no notes and WhatsApp’s when we now know this is not the case.
This does not inspire confidence in the Scottish Government approach to its full co-operation with this Inquiry. Saying “we are co-operating is one thing, doing it, is quite another”.
We are pleased at the robust attitude that is being displayed by Counsel to the Inquiry, Jamie Dawson KC in his approach to obtaining all relevant documents.
We note the suggestion of Counsel to the Inquiry that Rule 21 notices may be served and, given the history of disclosure so far, we are requesting Baroness Hallet, Chair of the UK Inquiry that such notices are served at the earliest opportunity.
The rule 9 process adopted to date has left us with late, incomplete and wrong information being provided to the Inquiry : a Section 21 notice – with the criminal penalties available if compliance is not obtained is likely to focus minds in respect of time and encourage the most thorough process of complying with requests.
To be clear Failure to comply with the Section 21 Notice without reasonable excuse under section 35 of the Inquiries Act 2005 is a criminal offence, punishable on summary conviction with a fine not exceeding £1,000 and/or imprisonment for a maximum of 51 weeks.
On the question of legal privilege, we would submit that for the Inquiry to understand, to the fullest extent possible, all of the considerations which were taken into account by Ministers and officials, we needs to see all advice provided to them of any description, including any legal advice they were given.
At the preliminary hearing in London on the 1st March we stated that anything less than full disclosure would be considered as an attack on the integrity of both the UK and the Scottish Public Inquiries. We said that no individual, no matter how powerful, can be allowed to interfere with the pursuit of truth, justice, and accountability in this inquiry. Those who lost their lives to COVID-19 deserve nothing less.
The families we represent welcome the unprecedented and robust response of the UK Inquiry on the failure of the Scottish Government to disclose all the material requested. The Government should be answerable to the people, there must be no hiding place for those involved in decision making.
I said at the start of this process that No individual, no matter how powerful can be allowed to interfere with the pursuit of truth, justice, and accountability by this Inquiry, those who lost their lives to Covid-19 deserve nothing less.”
