You can’t teach old spin-doctors new tricks, so here we go again on the meaningless numbers game. As the WhatsApp questions multiply, how often will we hear that the Scottish Government lodged “13,000 documents” with the Covid inquiry? Or that Nicola Sturgeon provided “her third written statement running to 200 pages”. At this point, the Scottish public (and naïve branches of our media) are expected to be sufficiently impressed to forget WhatsApps or other omissions yet to emerge.
It is, in this respect, the Salmond Inquiry all over again, when one missing piece of paper or a single frank answer could have got us closer to the truth than all the document dumps and protestations of amnesia put together. When it comes to evidence, quantity and quality are vastly different concepts.
Fortunately, there are two critical differences. First, a judge is presiding over the Scottish Covid inquiry and Lord Brailsford is unlikely to be less exacting than Lady Hallett at its UK-wide counterpart; each of them several country miles removed from the forensic limitations of a Holyrood committee.
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The second distinction lies in subject matter. This time it is about life and death. It is about decisions taken with grievous implications for thousands of families. Correspondingly, the tolerance threshold will be extremely low if it is confirmed that evidence was disposed of on an industrial scale.
It will be worse, if suspicion grows that a lot of what the missing messages contain involved political positioning by the Scottish Government and the public profile of Ministers.
We need look no further than the National Records of Scotland to find an excellent definition of why it is essential, even in normal times, for the workings of government to be backed up by contemporaneous evidence.
It states: “The preservation of the records of government ensures it can be held accountable for its actions, that society can trace the evolution of policy in historical terms and allows access to an important resource for future decision making”.
The same message is spelled out in every Beginner’s Guide to Being a Minister. Records are maintained in the interests of integrity and accountability. That is why every meeting is (or should be) minuted; why every Ministerial telephone call is listened into by a civil servant taking notes.
Technology evolves but rules stay the same. Any communication on official business must be available for subsequent inspection. Deliberate breach of that rule through destruction of evidence should be a resignation offence, just as if they had set fire to an inconvenient piece of paper. There is also a significant chance it is a criminal one under Freedom of Information legislation, as Aamer Anwar pointed out in his letter to the First Minister.
The Covid years were not “normal times”. It could never have been clearer that accountability would follow at some stage for decisions taken, by both UK and Scottish governments. Anyone who destroyed evidence of communications between decision-making parties knew they were doing something highly improper.
If Nicola Sturgeon did not understand this, after over a decade in government, it surely must have occurred to her in May 2020 when she confirmed there would be a Scottish public inquiry. It should be recalled that this was when under pressure about two issues where there was a prima facie case that the Scottish Government was in serious error.
The first was its failure to make public the Nike outbreak in Edinburgh which, if known about, would have raised the probability of an earlier lockdown. The second was the transfer of hospital patients into care homes which was already being seriously challenged.
Once it was confirmed an inquiry would be held, it was absolutely clear that nothing should be deleted and everything was potential evidence. Surely it was the duty of the Permanent Secretary at the time, Leslie Evans – who should be remembered for her central role in the Salmond affair – to reiterate that to every Minister and civil servant involved?
It would be reasonable to assume that promising an inquiry from an early stage was a tactic by Ms Sturgeon to close down short term criticism. But that did not liberate her from the implications. As the months rolled by, the inevitability of both Scottish and UK inquiries was inescapable.
On August 24 2021, when she formally announced a Scottish inquiry, Ms Sturgeon was asked a very specific question by Ciaran Jenkins of Channel 4 News: “Can you guarantee to the bereaved families that you will disclose e-mails, WhatsApps, private emails if you’ve been using them, whatever; that nothing will be off limits in this inquiry?”.
The reply was vintage Sturgeon, opening with a patronising jibe towards Mr Jenkins about his understanding of statutory public inquiries and wrapped in subsequent verbiage. But somewhere in the middle was the unambiguous assurance “for the avoidance of doubt” that she would give the guarantee he asked for – WhatsApps and all.
One question lawyers are likely to return to is whether, at the point of that reply, she was well aware that messages referred to by Mr Jenkins had been long since consigned to the ether by herself and those around her?
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The Tory government fought long and hard to prevent WhatsApp messages being handed over to the UK inquiry but when they lost that argument before Lady Hallett, the contested material was still there to be handed over – and it was highly significant. That is the option which has apparently been closed down in Scotland.
Counsel to the UK inquiry, the Scottish KC Jamie Dawson, has noted this contrast. It was “surprising” he said “in light of the availability of such messages in large volumes within the UK Government”. He added: “This has merited further inquiry into whether, how and why messages came to be deleted”.
We will hear today what Shona Robison has to say. Let us hope she addresses Mr Dawson’s questions rather than obfuscating with meaningless numbers.
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