Humza Yousaf has refused to refer himself to his independent advisor on the ministerial code after being accused of misleading parliament over Covid inquiry WhatsApps.
The First Minister said there was “no need to do so” after leaving the Holyrood chamber, where he was grilled on the issue at FMQs.
It emerged last night that the Scottish Government had been asked by the UK Covid Inquiry in February to supply any WhatsApp messages “relating to” its pandemic decisions.
However Mr Yousaf told FMQs last week that the Inquiry had asked for WhatsApp messages in September, as his deputy Shona Robison had done two days earlier.
That led to Scottish Tory leader Douglas Ross accusing the pair of misleading parliament, which is seen as a resignation offence at Holyrood.
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Mr Yousaf polices the ministerial code for his ministers, but decisions on whether he himself broke the code are considered by an independent adviser.
It is for the First Minister to decide whether to refer himself for adjudication.
During FMQs, Mr Yousaf denied he or Ms Robison misled parliament, saying that when he spoke of “September” last week he was referring to a specific group of WhatsApp messages.
The claim was met with cries of “rubbish” from the opposition benches.
However Mr Yousaf did admit that the Scottish Government had interpreted the Inquiry’s initial requests for WhatsApp messages “too narrowly”.
Ministers failed to hand over any messages for four months until being prompted for further information, belatedly handing over 14,000 messages on Monday this week.
Asked by Mr Ross to admit he “didn’t tell the truth,” the First Minister replied: “I absolutely refute that. Clearly, I was talking about specific WhatsApp groups.
“Where I do accept fully from the inquiry is that we have interpreted their requests too narrowly and subsequently having done so we have then supplied 14,000 messages to the inquiry.”
Referencing the previous statements from both Ms Robison and the First Minister, Mr Ross said: “The two most senior people in the Scottish Government stated that the UK Covid Inquiry only requested messages in September.
“It wasn’t a slip of the tongue, it wasn’t an honest mistake, it was deliberate.”
Mr Ross accused the FM and his deputy of “being caught red-handed in a cover up”.
He said: “They knowingly told this chamber statements that were false.
“Isn’t it beyond doubt that Humza Yousaf and Shona Robison misled Parliament?”
The First Minister said: “Not the case.”
Mr Yousaf repeatedly raised the conduct of the UK Government during the pandemic which had been brought to light by the Inquiry.
He cited Cabinet Secretary Simon Case likening working in Boris Johnson’s government to “taming wild animals” and reminded Mr Ross he had been a minister in it.
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Scottish Labour leader Anas Sarwar asked why the Government had refused to hand over its unredacted legal advice to the Inquiry despite doing so at the three previous inquiries.
In a note to the inquiry last month, lead counsel Jamie Dawson KC said a request had been made to the Scottish Government in August to waive legal privilege over advice given by law officers during the pandemic, with the request “discussed on a number of subsequent occasions”, but “no formal answer has been forthcoming to date”.
Mr Dawson added that – with hearings due to start early in the new year on the Scottish Government’s handling of the pandemic – “we are fast approaching a point by which any advantage from such a waiver will be redundant”.
Mr Sarwar said: “It couldn’t be clearer – the First Minister has lost control of his Government and he appears to have misled Parliament on more than one occasion. We were promised full transparency and co-operation from this Government, but they have failed.
“The legal advice that the Government has provided has not been complete, and in some cases almost entirely redacted. The inquiry’s lawyer has said this means the inquiry is constrained from fully carrying out its function.
“Hiding this crucial evidence is an affront to every victim of Covid, their families and everyone who lived under lockdowns and closures.”
The First Minister confirmed redactions had been made due to issues around legal privilege, adding: “Therefore, of course, a discussion would have to take place with our law officers in relation to what can be unredacted. Where we can absolutely send information unredacted, it is my full expectation as the individual who leads the Government that the information is provided in full, in unredacted form.”
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His spokesman later said the Scottish Government was in talks with the Inquiry about mirroring the position of the Welsh Goverment on legal advice - providing it unredacted but with conditions on what could ultimately be made public.
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