PRESS RELEASE – 9TH NOVEMBER 2023- FIRST MINISTER’S QUESTIONS- COVID-19 WHATSAPPS & LEGAL PRIVILEGE
PRESS RELEASE – 9th November 2023
FIRST MINISTER’S QUESTIONS TODAY at SCOTTISH PARLIAMENT-
COVID-19 WHATSAPPS & LEGAL PRIVILEGE
Statement by Aamer Anwar as Lead Solicitor for the Scottish Covid Bereaved:-
The First Minister stated today that “the Scottish Government clearly interpreted the request from the Inquiry in a way that was too narrow” Once again, the First Minister has failed to illuminate, why his Government told the UK inquiry that the majority of WhatsApps messages for members of Scottish Government were not retained by witnesses. For the last several months, the Scottish Government’s army of lawyers have been present at the UK Inquiry and were privy to the legal battles lost by Boris Johnson and Cabinet Office, they were also in receipt of the disclosure of thousands of WhatsApps that would have clarified exactly what was expected of the Scottish Government.
We note that on the 31st of October the Deputy First Minister Shona Robison stated:-
“In addition to the hundreds of messages already handed over to the UK Inquiry, this notice will allow us to share over fourteen thousand (14,000), mainly WhatsApp, messages from various groups and individuals over the period of the pandemic, mostly concerning routine coordination of work and meetings by officials. I can confirm that messages from Ministers and former Ministers are included but I have not seen them nor should I as that is for the Inquiry…Let me be clear, however, that contrary to some reports, there is not and has not ever been a requirement for any official, let alone Ministers, to auto-delete messages without ensuring that relevant information from them is captured and saved appropriately first.”
Whilst a great deal has been made by the Government of disclosing some 14,000 WhatsApp messages, that barely touches the tip of the iceberg, when placed in context, Matt Hancock had some 100,000 WhatsApp messages alone. (https://news.sky.com/story/how-have-matt-hancocks-whatsapp-messages-been-leaked-and-what-is-a-non-disclosure-agreement-12822797)
We were astonished to hear the words “contrary to some reports” because this was information provided by the Government to the Inquiry. It is a matter of public record that the UK Inquiry stated that they were told that the majority of the relevant messages had not been retained by individuals.
Module 2A covered 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 blindingly 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.
The Scottish Government’s continued failure to provide clarity, the changing timelines, the redundant excuse of ‘confidentiality’ inflames the belief that they are obstructing the search for truth. On the 31st October an apology was offered in parliament to the Scottish Covid Bereaved and the First Minister wished to meet with my clients- they will not do so until the numerous concerns raised in our letter to Mr. Yousaf on the 27th October are addressed. 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.
LEGAL PROFESSIONAL PRIVILEGE- WAIVER REQUEST
The UK Inquiry wrote to the Scottish Government explaining that the Inquiry was constrained from fully carrying out its function because of not having access to material which had been redacted from documents by reason of LPP or pursuant to the Law Officers’ Convention. The Scottish Government perfectly understands that that in order for the Inquiry to understand, to the fullest extent possible, all of the considerations which were taken into account by Ministers and officials, it needs to see all advice provided to them of any description, including any legal advice they were given. Were the legal advice to be redacted, the Inquiry can only see part of the story and may miss important material that might help explain the decisions taken.
The Inquiry can and will redact sensitive and irrelevant material as it has done for the UK Government before disclosing it to Core Participants, why should the Scottish Government be any different. It is vital that the Inquiry obtains this material from the Scottish Government. No Government or politician, whether based in Westminster or Holyrood, should seek to hide behind LPP to stop the public finding out what happened in the corridors of power during the pandemic. The substantive hearings are two months away, any further delay is simply inexcusable.
