Chamber and committees

Further to the Deputy First Minister’s statement in Parliament on 31 October and the subsequent session of First Minister’s Questions on 2 November, this written answer sets out further clarification of the timeline of requests made for documentation relating to Module 2A of the Inquiry, which is concerned with decision making in Scotland. The excerpts from Rule 9 requests below have been produced with the agreement of the Inquiry and Scottish Ministers are grateful to them for their permission to do so.

Accordingly, we set out below further details of the sequence of requests which have been made. For the avoidance of doubt, when the passages below refer to WhatsApp messages, this includes all messages sent by way of similar informal messaging systems.

• On 4 November 2022, the Inquiry sent to the Scottish Government an initial draft request under Rule 9 of the Inquiry Rules 2006 which included the following question asking about the extent to which there was informal or private communication about significant decision-making, including for example whether there were WhatsApp groups (or other forms of group chats) which key decision-makers used to communicate about such decisions or to make such decisions:

“ To what extent was there informal or private communication about significant decision-making? For example, were there WhatsApp groups (or other forms of group chats) which key decision-makers used to communicate about such decisions or to make such decisions?”

• On 2 February 2023 the Inquiry sent a final version of the Rule 9 Request referred to above. This included requests for key communications and significant correspondence, including WhatsApp messages, relating to a range of different issues including, for instance, key meetings concerning the pandemic response in Scotland, messages about key decisions or by which such decisions were taken, meetings with the UK Government and messages about decision making relating to non-pharmaceutical interventions.

• In addition to requests for WhatsApps being made in specific contexts, the following request was made at paragraph 22:

“To what extent was there informal or private communication about significant decision-making? For example, were there WhatsApp groups (or other forms of group chats) which key decision-makers used to communicate about such decisions or to make such decisions? Please provide any communications relating to key decisions, including internal and external emails, text messages or WhatsApp messages (on Scottish Government and private or personal devices), held by the Scottish Government.”

• Similar Rule 9 requests were received from the Inquiry in February and March 2023 seeking evidence, including WhatsApp messages, from Scottish Government Directorates.

• The Scottish Government submitted draft responses to the Inquiry relating to these requests throughout Spring 2023. In those responses it made clear that all key decisions and decision making were recorded on the Scottish Government corporate record. No WhatsApp messages were submitted as part of those responses.
• These draft responses were finalised at the Inquiry’s request at the end of June 2023 and have now been disclosed to the Inquiry’s core participants.
• Based on its review of these responses, the Inquiry considered that further information was required in relation to the use of WhatsApps in response to the requests set out above, and thus a further specific rule 9 request was issued to the Scottish Government on 22 June 2023 seeking details of its policies relating to the use of informal messaging for the conduct of government business.

This request sought specific information about the use of WhatsApp groups concerned with the Covid-19 response, including those used for coordination, logistics, ad hoc or day-to-day communications, as well as those that discussed decision making or policy. It asked for the names of any such groups, their members, their roles, the date range of their activity, and the quantity of messages per group, as well as an indication of the topic(s) of those messages. Draft responses were submitted on 29 August and a further revised version on 11 October 2023. The final response will shortly be processed by the Inquiry.

• Once such information concerning the use of such groups had been provided, the Inquiry asked in September 2023 to be provided with the messages contained within those groups.
• In July and August 2023, a significant number of Rule 9 requests were sent to individual Ministers, former Ministers and civil servants all requesting evidence concerning WhatsApp and informal communications with Cabinet Secretaries, Ministers, senior civil servants or advisers (whether on Government issued or personal devices) and asking for copies of such messages to be provided.
• The Scottish Government considers that given the large amount of sensitive and personal information contained within the WhatsApp messages and other informal messaging supplied to it, in order to comply with its data protection obligations there requires to be a clear legal basis for the transfer of such data to the Inquiry (bearing in mind that the High Court case of Cabinet Office v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin) on 6 July 2023, made it clear that it is for the Inquiry to determine the relevance of material that it has requested). Scottish Government therefore requested on 5 October 2023 that the Inquiry issue a notice under Section 21 of the Inquiries Act 2005, requiring the Scottish Government to supply such information that it holds, thus providing that clear legal basis.
• The Inquiry issued this Section 21 Notice on Monday 30 October, setting a deadline of Monday 6 November for the information to be supplied. The Scottish Government complied with this deadline and released all such messages it held to the Inquiry on 6 November.

We hope that this further detail, including the further detail on requests made by the Inquiry, will clarify the timeline of events in question.