Sturgeon, WhatsApps, and why they matter to Covid inquiry

For one camp, it is a potentially illegal breach of the Inquiries Act, a slap in the face for the Covid bereaved, and a smoking gun which goes to show where the Scottish Government's true priorities lie: not in transparency and accountability, but in protecting reputations and evading scrutiny - whether that comes in the form of statutory public inquiries, or nosey journalists with freedom of information requests.

At the other end of the spectrum are those who insist that the Government's protocol was sensible and proportionate, and that witnesses such as the national clinical director Jason Leitch have been unfairly dragged over the coals simply for following those rules.

Phones can be lost or stolen. Is it really unreasonable to transfer "salient and relevant" points of conversations into the corporate record while erasing the rest?

Ultimately, it will be for the inquiry to decide.

One bone of contention will be how "relevance" is defined, and on this point at least the Scottish Government may get short shrift.

Proceedings were previously delayed last summer after the UK Government's Cabinet Office launched legal action in a bid to avoid being forced to hand over thousands of unredacted WhatsApp messages it described as "unambiguously irrelevant".

The High Court in London threw out the challenge on the grounds that it is up to Baroness Hallett, the inquiry's chair, to decide which material is relevant or irrelevant.

READ MORE: 

• Sturgeon brands Boris Johnson a f***ing clown in WhatsApp chat with aide
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• Scot Govt accused of reluctance to divulge 'uncomfortable' information to public

This is a viewpoint which has been echoed this week by Scotland's current Information Commissioner David Hamilton, as well as his predecessor Kevin Dunion, following a series of WhatsApp exchanges scrutinised at the inquiry where officials including Prof Leitch and the chief medical officer joked about deleting chats so that they could not be recovered through FOI.

In one chat Ken Thomson, formerly one of the Scottish Government's most senior civil servants, quipped "the information you requested is not held centrally" - a stock response used by organisations when batting away requests.

Mr Hamilton said what had surfaced through the inquiry suggested that the principles of freedom information "appear to have been subverted" and the public "may not be getting the rights which they are entitled to."

Humza Yousaf described the Scottish Government's handling of WhatsApp messages as frankly poor when he gave evidence to inquiry on Thursday (Image: PA)

With Nicola Sturgeon due to be grilled by the inquiry for a full day on Wednesday, how will she explain her own use of WhatsApp?

Back in August 2021, on the day that the Scottish Covid inquiry was confirmed, the then-First Minister was asked directly during that day's Covid briefing whether she would "guarantee to the bereaved families that you will disclose emails, WhatsApps, private emails if you've been using them, whatever - that nothing will be off limits in this inquiry".

Not only was she "prepared to give that assurance", said Ms Sturgeon, but under the terms of a statutory inquiry she "wouldn't have the ability" not to comply.

A UK Covid inquiry had already been announced in May 2021 and, under the terms of the Inquiries Act, it is a criminal offence if anyone “intentionally suppresses or conceals a document that is, and that he knows or believes to be, a relevant document, or … intentionally alters or destroys any such document”.

Again, the crux of the matter is whether "relevant" information has been deleted - which is something of a Catch-22 if they are gone.

The inquiry heard that Ms Sturgeon's WhatsApps were wiped in a "routine tidying-up of inboxes or changing of phones" but that "all substantive issues were recorded by private office emails".

However, in a social media post last weekend, Ms Sturgeon insisted that the inquiry "does have messages between me and those I most regularly communicated with through informal means".

Although erased from her own device, copies were preserved in colleagues' phones - including, as we have seen, exasperated rants to her chief of staff Liz Lloyd describing Boris Johnson as a "f***ing clown".

All of this raises several questions which Jamie Dawson KC, the inquiry's Scottish counsel, will be keen to unpick.

One is why no one in the Scottish Government - including Ms Sturgeon in that August 2021 press conference - appears to have pondered whether there was anything contradictory between a policy of routinely erasing WhatsApps and the rights of the public inquiry.

Also curious is the extent to which practice appears to have diverged between ministers and officials, with Ms Sturgeon and Prof Leitch routinely erasing their chats while ministers such as Kate Forbes mostly retained theirs.

Meanwhile, Liz Lloyd told the inquiry she had "no recollection" of specific guidance instructing staff to delete informal messaging.

It is also notable that the "relevant and salient" bits extracted and transferred into the corporate record were not retained verbatim.

According to the evidence of Professor Sir Gregor Smith, the chief medical officer, what was recorded - and thus accessible via FOI - was the "essence of any decision".

In doing so, there is a risk that something important is lost.

Some of the most illuminating WhatsApps so far disclosed by the inquiry were those from UK Government civil servants and advisors reflecting less on direct decision-making and more on the general atmosphere, ethos and frustrations of the environment and the circumstances in which decisions were made.

How 'relevant' exactly was Dominic Cummings' infamous "Jaws mode w***" comment?

Except that there is an argument to be made that this sort of material - which falls in a grey area between relevant and irrelevant - may have provided valuable insight and answers for those most adversely affected by Scottish Government decisions.

Dominic Cummings giving evidence to the UK inquiry last year. A number of his WhatsApp messages have been entered into evidence, giving a frank insight into circumstances surrounding decision-making in Downing Street during the pandemic (Image: PA)

Of course, the UK Government's hands are far from clean when it comes to mysteriously missing WhatsApps.

More than 5000 messages vanished - apparently irretrievable - from Boris Johnson's phone. Somewhat conveniently they covered the period of the first lockdown, from January to June 2020.

Rishi Sunak has been unable to supply any, having switched phones multiple times during the pandemic.

Yet it is striking quite how far apart the Scottish and UK governments are when it comes to the volume of WhatsApps handed over.

The inquiry received 120,000 from Matt Hancock alone compared to 28,000 on behalf of Scottish Government ministers, civil servants and advisors.

Politicians should have learned by now: "it's never the crime - it's the cover up". And even the appearance of one can be just as incriminating.