SARWAR: Legal advice from Government has been almost entirely redacted

By Bill Heaney

Legal advice from the Scottish Government to the UK Covid 19 inquiry has been kept under wraps and seriously edited, the Holyrood parliament was told yesterday.

Scottish Labour leader Anas Sarwar has accused the SNP of hiding important evidence and not co-operating fully with the inquiry – ” We were promised full transparency and co-operation by this Government, but it has failed.

He said bereaved families and their lawyers are watching these exchanges and that it could not be clearer that Humza Yousaf, the First Minister, has “lost control of his Government and he appears to have misled Parliament on more than one occasion”.

Mr Sarwar added: “Let us focus on the substance, because this matters. The Covid pandemic was our country’s most difficult period in living memory. That is why learning the lessons and getting the answers are so important.

“We were promised full transparency and co-operation by this Government, but it has failed. WhatsApp messages are not the only evidence that the Government is withholding from the inquiry.

“The legal advice that the Government has provided has not been complete and, in some cases, it has been almost entirely redacted [erased].

“The inquiry’s lawyer has said that that means that the inquiry is constrained from fully carrying out its function. Why is the First Minister’s Government hiding the legal advice and not co-operating with the inquiry?”

First Minister Humza Yousaf, pictured left,  told him: “I cannot comment on legal advice. However, where there is the ability to hand over un-redacted legal advice, I expect the Scottish Government to do so. We will do that with whatever information we can provide.

“I am more than happy to have the appropriate conversations with the law officers, but we have to ensure that legal privilege is maintained, where it is our legal responsibility to do so.

“Anas Sarwar said that we are not complying. I whole-heartedly disagree with that. We have handed over 14,000 WhatsApp messages. I have handed over my WhatsApp messages in unredacted form—I have not decided what is relevant; I have handed over all my messages to the inquiry for it to decide what is relevant.

“Anas Sarwar is absolutely right: the families who have been bereaved by Covid want answers. The 19,000 documents that we have handed over and the 14,000 WhatsApp messages that we have handed over, including the WhatsApp messages that I have handed over, show that this Government intends absolutely and unequivocally to fully co-operate with both the Scottish and United Kingdom public inquiries.”

Anas Sarwar told MSPs: “The First Minister said that he is co-operating, but I am not sure that he understands the question that I asked him or knows the situation, because he clearly still has not read the transcript from the UK Covid inquiry. Well, he should read it.

“The counsel to the inquiry has made it clear that the inquiry has asked twice—on 3 August and 14 August—for un-redacted legal advice and has not received it. That does not seem to be a fight that the Covid inquiry is having with the UK Tory Government in relation to major decisions during the pandemic that, presumably, involved legal advice, such as those around lockdowns, discharge to care homes and ‘Do not resuscitate’ notices.

“That is why the issue is important. Hiding that crucial evidence is an affront to every victim of Covid, their families and everyone who lived under lockdowns and closures.

“The Government has previously handed over legal advice in full to judicial inquiries, including the trams inquiry, the infected blood inquiry and the Scottish child abuse inquiry. The secrecy and evasion must stop. Will he hand over the legal advice in full to the Covid inquiry?”

The First Minister replied: “Anas Sarwar’s question gets to the nub of the issue, which is that the Government has co-operated fully with inquiries in the past. Where we are able to release legal advice, we will absolutely do that, but Anas Sarwar has to accept, first, that a process has to be gone through and, secondly, that each bit of legal advice has to be looked at in a case-by-case basis.

“He is absolutely right that we have provided legal advice to previous inquiries. Where we can do so in this inquiry, I absolutely expect every document, including those containing legal advice, to be handed over to the UK Covid inquiry and the Scottish Covid inquiry.

“I go back to the central point. Quite rightly, the families who have been bereaved by Covid want to know whether we will co-operate. Nineteen thousand documents, and 14,000 messages—mainly WhatsApp messages—have been handed over.

“We take absolutely seriously our responsibility to provide not just documents but, where possible, the legal advice. However, there are legal issues around legal privilege that have to be considered.”

Anas Sarwar was having none of it. He said: “It is clear from that answer that the First Minister is sinking, not swimming, and is completely and utterly out of his depth.

“It is not me who is saying that the legal advice has been redacted and not handed over—it was the Covid inquiry that, on 3 August and 14 August, asked for the information that has still not been provided by this Government. WhatsApp messages have been deleted, legal advice has been redacted and there is a different story every day.

“Even now, questions remain that the First Minister refuses to answer. He will not tell us how many people have failed to comply with the “Do not destroy” notices, even though the inquiry says that there is no confidentiality issue.

“There is more. It has been reported that Scottish National Party ministers and special advisers use SNP and private email accounts to communicate. What is not clear is whether those emails have been handed over, in full, to the Covid inquiry.

“Can the First Minister tell us, in the spirit of full transparency, whether any emails from SNP accounts have been handed to the Covid inquiry? If so, how many, and if not, why not?

“I remind the First Minister again that this is about families who lost loved ones during Covid. Before he answers, I remind him that we need accurate answers the first time.”

The First Minister replied: “I am not arguing with Anas Sarwar on the point that information has been redacted. I am saying to him that the reason why it has been redacted is—I can confirm—that there are issues around legal privilege, and therefore a discussion would have to take place with our law officers in relation to what could be un-redacted.

“Where we can send information un-redacted, it is my full expectation, as the individual who leads the Government, that that information is provided in full, in un-redacted form.

“Let me say once again, for the families who have been bereaved by Covid, that the Government will fully comply with both the UK inquiry and the Scottish public inquiry.”

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