THE revelation that government ministers and senior officials routinely deleted messages during the Covid-19 pandemic in Scotland – or did so after an inquiry was announced – is truly a scandal of the utmost seriousness.

It’s important to remember the context. On August 24, 2021, then First Minister Nicola Sturgeon announced the Scottish government would establish a judge-led Covid-19 inquiry.

When asked about the inquiry’s access to evidence, she said it would have access to all government e-mails, WhatsApp messages and other forms of communication by which Covid decisions were taken. Nothing would be off-limits.

The cast iron guarantee given in 2021 by Nicola Sturgeon on access to WhatsApp messages can be found on the Scottish government’s YouTube channel at 32 minutes here.

Yet at the UK Covid inquiry in London last week Jamie Dawson KC, one of the Scottish advocates appointed to lead the inquiry, told the inquiry chair that little evidence had been handed over from the Scottish government – just three notebooks and no WhatsApp messages.

How do we square this paucity of evidence with the 2021 commitment?

The revelation is astonishing because we were told the Scottish government operated 137 WhatsApp groups to discuss pandemic strategy, with 70 individuals taking part in chats over two years.

There are two Covid-19 inquiries taking place in tandem just now; a UK-wide one and a Scottish one. Both are established under the 2005 Inquiries Act.

Under section 21 of the Act, an inquiry chair has the power to compel the production of evidence and for people to appear as witnesses before it.

With a few exceptions, the failure to comply with such requests is a criminal offence.

“Do not destroy” notices were issued to witnesses by the Scottish Covid Inquiry on 5 August 2022 warning that evidence should not be destroyed.

Arguably, everyone was on notice from the announcement of the inquiry back in August 2021, during the pandemic. For the purpose of the 2005 Act the term “document” includes information recorded in any form – that includes e-mails, WhatsApp messages and notes.

In July, the UK Cabinet Office raised judicial review proceedings against the UK Covid Inquiry to prevent the handing over of WhatsApp messages from the mobile phone of the then Prime Minister and other officials.

That case was lost. The court ruled it was for the Inquiry Chair to decide what evidence was relevant and not witnesses.

WhatsApp and other messages had to be handed over – they were for Boris Johnson but not for the current PM who said he no longer had access to them.

Section 35 of the Act provides that a person is guilty of an offence if during the course of an inquiry they intentionally suppress or conceal a document that is “a relevant document”. A document is relevant if it is likely the inquiry panel would, if aware of its existence, wish to be provided with it.

One thing is clear. The failure to provide any WhatsApp messages from 70 Scottish politicians and officials is a collision course with both Covid inquiries.

When and why were these messages destroyed? Who approved this? What about Nicola Sturgeon’s 2021 guarantee?

These are questions that must be answered if justice is to be done for the Scottish Covid bereaved, their loved ones and those impacted by the pandemic.