Remember the fuss about Johnson’s WhatsApp messages during Covid, the government’s legal challenge to the S.21 demand made by the Covid Inquiry’s Chair and it losing that challenge? The issue of why the PM’s Principal Private Secretary turned on WhatsApp’s ‘disappearing message‘ function for the PM’s WhatsApp group just before the Inquiry was announced is exercising it right now. Now we have the Scottish version – only it appears to be worse, both for the Scottish politicians and civil servants involved, the demands of good governance, compliance with the Scottish government’s own laws and the need to get to the truth of what Scottish Ministers were doing during Covid.

Document management and retention are not the sexiest topics in politics. Or in commercial life, come to that. But they are important. If you do not know what is going on, how can you assess risk? If you don’t understand how matters went wrong, how can you improve? If you do not keep accurate records, how can you be transparent? How can you comply with FoI requests? Or court orders? How can you avoid lying? If you want to see evidence of this, consider the repeated and widespread disclosure failings by the Post Office. Or by civil servants in the blood contamination scandal (described in this radio programme).

In Scotland, the key points are these:-

• The Public Records (Scotland) Act 2011 requires public authorities to have a records management plan for public records relating to functions carried out by a wide variety of public authorities, including the Holyrood government. A “record” means “anything in which information is recorded in any form“. A “public record” means “records created by or on behalf of the authority in carrying out its functions“.
• The Scottish government did create a records management plan in January 2020. The definition of record is very wide-ranging. It includes WhatsApp messages. It applies to all in the Scottish government. The retention period is what is necessary to comply with its legal obligations and business requirements.
• Scottish Ministers have confirmed that they used WhatsApp for government business. So did other officials. There appear to have been 137 different WhatsApp groups used by Scottish Ministers and other officials and civil servants during Covid.
• In May 2020 Ms Sturgeon announced that there would be a Scottish Covid Inquiry. In May 2021 Johnson announced a U.K. wide inquiry which would be under the 2005 Inquiries Act ie a statutory one with powers for the Chair to require the production of relevant material under S.21. Breach of that section is a criminal offence. At that point, all Ministers and government officials were on notice of the importance of preserving all potentially relevant material. Arguably, Scottish Ministers and civil servants had been on notice of the need to preserve records since May 2020. It was not until November 2020 that the WhatsApp ‘disappearing message‘ function was introduced.
• Nicola Sturgeon was well aware of this because in August 2021 she was asked this during a press conference: “Can you 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?” She responded: “If you understand statutory public inquiries you would know that even if I wasn’t prepared to give that assurance, which for the avoidance of doubt I am, then I wouldn’t have the ability. This will be a judge-led statutory inquiry.”
• 70 officials in Scotland, including Ms Sturgeon, have been asked for WhatsApp messages relating to Covid by the inquiry. None have been provided. It appears that they have been manually deleted. Notebooks and diaries are also missing. Humza Yousaf’s latest explanation is typically incoherent and seemingly at odds with government policy.
• And the deletions: Why? When? By whom? Were any other records created or maintained of the substance of those messages, as they should have been? If so, where are they? If not, why not? And so on. Lots of questions.

There are 2 main objections to the demand for all these records. The first is that it is so much that it makes the inquiry far too long and not useful, if by useful is meant an inquiry providing practical recommendations to be implemented promptly, not a decade (or more) later. This has some force. But it is an issue about the inquiry’s scope not whether Ministers can choose to comply with it. The second is that making such material public makes it hard for Ministers and officials to have private, frank discussions necessary for good government. This has somewhat less force when such records are explicitly described as government records which legally must be kept. It also needs one to believe that such discussions did lead to good government (without seeing how can one tell?) and that the desire to keep them secret has nothing to do with saving the blushes of Ministers or officials.

What is not acceptable is for Ministers to create laws saying one thing then fail to comply with them (the “Partygate” principle). What is not acceptable is for Ministers to make promises to the public to do X, then fail to do what they have promised in public to the public. What is not acceptable is for Ministers to delete records when they know or suspect that these will be required by a statutory inquiry. This looks like obstruction. It looks like indifference to those who suffered during Covid and are entitled to know what happened, why and whether things might have been done better. As Dr Gabriel Scally, Visiting Professor of Public Health, Bristol University said, what the public want are truth, justice – accountability, in short – and compensation. You cannot hope to get the first – let alone the second – if Ministers and public servants cover their tracks.

In August 2023 Pan MacMillan announced a book deal with Ms Sturgeon covering her time in politics, to be published in 2025, describing it as a “revealing memoir“. Let’s hope the loss of all those WhatsApp messages doesn’t stop her revelations or her providing the inquiry with the benefit of her memory. Public service is meant to be for the benefit of the public, after all, not for politicians’ private gain.

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