Mr Dawson insisted that the Scottish Government had not been co-operating with them in terms of information they sought from ministers and officials.

Tory leader Douglas Ross raised this up at First Minister Questions as he demanded that the SNP leader should reveal why they had not supplied this information to the inquiry when it had been agreed that they should.

Mr Yousaf vowed to MSPs that he would be “open and transparent” when it comes to evidence which was relevant, but Mr Ross insisted the agreement went beyond that to a commitment to supply all information relating to Covid, not just what the government decided was relevant.

It would be for the inquiry being held before Lord Brailsford to decide that.

Mr Dawson suggested that the inquiry might have to look at legal means to ensure they get all the information they ask for.

He also intimated that some key message may have been deleted by government officials, which would be illegal.

The KC said: “We asked the Scottish Government, and other significant Scottish public bodies involved in the Covid-19 response, including Public Health Scotland, that they provide use with details about the usage of informal messages, including, but not limited to Whats Apps, about the management of the pandemic in Scotland and also to provide copies of the messages themselves.”

He added that this included information about the nature and extent of the use of “such informal messaging including the groups in which they were sent.”

However, he confirmed that “no clear or comprehensive response emerged in the corporate statements from the Scottish Government and no messages were provided.”

Mr Dawson insisted that the inquiry did not receive information from some officials which suggested that “informal communications” were used by decision makers.

He added that no WhatsApp or other informal messaging material, either in its own possession or in the possession of other individuals” despite the official requests made to the Scottish Government.

Mr Ross told the First Minister: “Grieving families deserve answers and full transparency from this government.

“In May this year, asked a direct question by a journalist, Humza Yousaf said if a request for messages including WhatsApps was made, the Scottish Government should be ‘absolutely open and transparent.’

“In June, in this chamber, he said: ‘WhatsApp messages, emails, Signal messages, Telegram messages or whatever— will absolutely be handed over to the Covid inquiries and handed over to them in full.’ The inquiry has heard this morning that that has not happened.

“The Covid inquiry also has powers to compel evidence. Refusing to hand over this information would not only be an insult to grieving families. It would not only be a shocking display of secrecy. It would potentially break the law.”

Mr Yousaf claimed that his government HAD been transparent with the inquiry, and handed over all the information that they had been asked for, including a statement from himself. But he said that he would ask his solicitor general to look into the complaints.

He added: “I also expect every single minister and government official to comply with the DND [do not destroy] notices that were provided by the UK Inquiry. There have been concerns raised that were raised by the committee, we will entirely investigate them full, but it is my understanding the relevant information has been passed over.”

Mr Dawson suggested that if they are not given all of the evidence they have asked for, then they would consider the next steps which may involved a “section 21 notice to ensure that the important details of the government’s position is revealed fully to the inquiry.”

This would make it a criminal offence for the SNP Executive not to hand over the information which is asked for, and could lead to a fine of up £1,000 and/or imprisonment for a maximum of 51 weeks.

Speaking to journalists after FMQs, Mr Yousaf again claimed that they had handed over all the information which had been requested by the UK Covid Inquiry, but added that it “may take quite a while” to hand over “all relevant correspondence, whether it’s emails, social media messages, whatever it is.”

The Scottish Conservatives said they have accused Humza Yousaf of a “shocking display of secrecy” and that the inquiry’s counsel, Jamie Dawson KC, had made this clear when he said: “No clear comprehensive response emerged in the corporate statements from the Scottish Government… No messages were provided.”

They added: “The counsel also revealed  that witness statements “suggest that informal communication such as WhatsApp messages were used by key decision makers to discuss matters around the progress of the pandemic in Scotland” and “decisions that the Scottish Government might have to take”.

And that one Scottish Government official has voluntarily handed over WhatsApp messages from during the pandemic. It was made clear that all communications  should be “absolutely open and transparent” —  “WhatsApp messages, emails, Signal messages, Telegram messages or whatever will absolutely be handed over to the Covid inquiries and handed over to them in full.”

The Scottish Government has records management policies requiring officials to retain records.

The Covid inquiry has powers to compel evidence and the Scottish Government has record management policies that require it to retain information, so deleting these messages would potentially be illegal.

Notes

Humza Yousaf appears to have misled parliament. Humza Yousaf said: “The Scottish Government does not make decisions through WhatsApp. That’s not what we routinely did…routinely decisions were not made over WhatsApp.”

Jamie Dawson KC, counsel to the Covid Inquiry, said: “Some of the witness statements that we have received from key decision makers from within the Scottish Government now suggest that informal communication, such as WhatsApp messages, were used by key decision makers to discuss matters around the progress of the pandemic in Scotland, to discuss advice received in relation to the pandemic, and to discuss the nature of the decisions that the Scottish Government might have to take.”

Destroying relevant WhatsApp messages or withholding them from the Covid inquiries is against the law. “There is an offence under section 35 of the Inquiries Act 2005 of altering, destroying or preventing relevant documents from being provided to the Inquiry.” https://www.covid19inquiry.scot/sites/default/files/2023-03/Do_not_destroy_letter.pdf

The Scottish Government is facing legal action over its non-disclosure. Humza Yousaf said: “There are some messages that we are going to continue to provide but we have to go through the appropriate processes.”

Jamie Dawson QC said: “The inquiry is currently considering what steps to take next. This may involve issuing further rule nines, or indeed section 21 notices [to require production of evidence], to ensure that important details of the position are revealed, and revealed fully, to the inquiry. Whatever route is deemed appropriate, a swift response will be expected.”

 In response to a written question in March, the Scottish Government said: “Substantive government The Scottish Government is required to retain WhatsApp messages relevant to policy making. Business and communication between Ministers and officials is normally conducted using email on the SCOTS IT platform. Mobile messaging apps can be a useful communication tool to support the delivery of business, particularly in relation to business continuity or staff welfare. We have a clear policy whereby any information which relates to the substance of government decision making must be transposed to the official record and retained.” https://www.parliament.scot/chamber-and-committees/questions-and-answers/question?ref=S6W-15654