Fiona Hyslop, then cabinet secretary for the economy, is shown in correspondence between Scottish Government officials and the National Records of Scotland to have been involved in discussions less than a week before care home mortality data was set to be released to the public in February.
Her intervention alongside that of government officials to involve external stakeholders in an attempt to “minimise impact” of the figures on the care sector led to a major delay in the data’s publication as the NRS u-turned on its decision to publish at the last second.
The NRS had initially refused to release the mortality data in care homes when it responded to an initial freedom of information request in September 2020, citing data protection rules.
The intervention from the Scottish Government in February came ahead of a deadline for the NRS to respond to an appeal lodged with the Scottish Information Commissioner (SIC) by news organisations including The Scotsman against that decision.
The SIC later ruled in May that the NRS had acted unlawfully in blocking the release of the data.
Responding at the time, the First Minister said the agency “operates in these kind of decisions independently of ministers”.
Opposition parties said the intervention raises questions around the “culture of secrecy” within the Scottish Government with Scottish Labour labelling the scale of the ministerial intervention “unacceptable”.
The Scottish Conservatives said the revelations “raise serious doubts” about the independence of the NRS from ministers.
The NRS denied any wrongdoing and said it was appropriate to involve external stakeholders in discussions around the appeal.
The Scottish Government said the matter had been for the NRS and that it was “keen” to ensure the agency had “considered arrangements for communication” with the care sector.
The revelations come after The Scotsman alongside STV, The Herald, and DC Thomson, revealed the government agency had unlawfully kept the care home mortality data secret for eight months amid criticism of a “lack of transparency” in May.
In his ruling, the SIC criticised the NRS for engaging in arguments that were “speculative in nature” as it tried to block the publication of the data after the agency refused to release the data in response to a freedom of information request.
However, emails obtained exclusively by The Scotsman reveal Scottish Government officials intervened as the figures were set to be published in February, with discussions involving Ms Hyslop and her officials directly leading to the delay.
In one email a week before an agreed publication date of February 10, NRS officials asked the Scottish Government whether ministers would “take a public interest stand and tell NRS not to release” the figures.
This was despite NRS officials stating it was “highly unlikely” they would succeed in blocking the release of the data by fighting the appeal and that they had “given in”, having decided they would make the care home death data public in early February.
Following the intervention, the care home data was made public on May 26, more than three months after its initial planned publication date of February 3 after the SIC ruled it must be published.
The political sensitivities of the impending release of the data around Covid-19 deaths in individual care homes was highlighted by the NRS in January when Peter Whitehouse, the agency’s director of statistical services, told an anonymous Scottish Government official the data’s publication would “perhaps be a story either way”.
The NRS had planned to release the data the next day but delayed publication until February 10 after Scottish Government officials intervened, stating stakeholders should be involved in discussions in a bid to “minimise impact”.
On the evening of February 2, Mr Whitehouse emailed a government official stating the NRS would take forward a suggestion from Fiona Hyslop to seek further legal advice ahead of the publication of the data.
He said: “Tomorrow we are going to (explore how to/whether we can) progress Ms Hyslop’s suggestion on seeking further advice from Law Officers.
"Not sure where this will take us as the conclusions around FoI are pretty clear – so I suppose it is whether Ministers ultimately want to take a public interest stand and tell NRS not to release. This is however complicated by NRS’s legal status and the Registrar General’s responsibilities.”
In another email, the chief executive of the NRS, Paul Lowe, told a government official that the records agency was “uncomfortable” about releasing the information, adding that he would do as much as possible to work with the Scottish Government on the issue.
He wrote: “Following [redacted] earlier message to Ms Hyslop i.e. is [redacted] still wishing to seek routes (presumably advice from you and your team) to prevent publication of this information or are we now in the territory of managing how the information is released and engagement with key stakeholders in advance of this?
“There is a small constitutional angle to this in that request has come to NRS as a Non Ministerial Department holding the data and to me as RG, rather than to SG/Scottish Ministers. However as you know we are also uncomfortable with releasing this data and so will of course continue to do what we can to work with you.”
In a further email, Mr Lowe asked whether Ms Hyslop had accepted the data would be released and was not seeking to block its publication in its entirety.
He stated: “I assume that there is acceptance from your Cab Sec that this data will be released and the focus has shifted to working with stakeholders to aid understanding and minimise impact.
“Obviously if Ministers are still looking at options as to how such a release of data should be avoided it would impact on the nature of the conversations with stakeholders?”
The next morning, a government official responded, stating that there “has always been an acceptance from [redacted] that it is for NRS to decide the legal basis for release of these data.
"[Redacted] concern has been in ensuring that the sector, including care homes and families, are aware this information is to be released”.
Following these discussions, a meeting took place on February 4 between the NRS, Scottish Government health officials, the Care Inspectorate, Scottish Care, representatives of SOLACE (a group of local authority chief executives) and chief officers of health and social care partnerships.
On the same day, a draft email to the SIC stating the NRS will publish the data on February 10 was passed to Scottish Government officials, but the stakeholder meeting led to representations from these groups to the NRS around the release of the data and the email was never sent.
Two weeks later, on March 1, the NRS received submissions from the care sector and local authority groups and submitted a formal written defence of their stance in an attempt to justify their continued blocking of the publication of the data.
On May 19, two weeks after the election of May 6, the SIC informed the NRS it lost the appeal as expected, with the data published in full on May 26.
Ms Hyslop also announced her resignation as a cabinet minister ahead of Nicola Sturgeon’s reshuffle after the election.
Craig Hoy, the social care spokesperson for the Scottish Conservatives said the revelations raise “serious doubts” around the independence of the NRS and said the news would “appal grieving families”.
He said: “The public deserves to know if this agency was working at the beck and call of the SNP Government to try and help mislead the public during an election.
“Failure to give accurate data on the deaths of vulnerable people from the public smacks of the worst sort of secretive and cynical SNP spin.
“Fiona Hyslop must urgently explain why she was so keen to intervene when the National Records had already caved into pressure to release the data and were all set to publish it.
“If the reason was simply to avoid a negative story during an election campaign then the families of those who died will rightly be deeply distressed and deserve an apology.”
Scottish Labour health spokesperson and depute leader, Jackie Baillie, echoed the concerns around secrecy and called for Scotland only inquiry into the handling of Covid-19.
She said: "The level of intervention by ministers to stop this information reaching the public eye is unacceptable.
"Time and time again we have seen a culture of secrecy grip this government, and despite the First Minister's warm words - they have an obsession with hiding the truth from the people of Scotland.
"Alongside muzzling Public Health Scotland, we have seen a deeply dysfunctional culture at the heart of this Government which appears to believe the public does not have a right to know what is done in their name.”
Responding, a spokesperson for NRS said it was “appropriate” for the NRS to “give careful consideration” to the FOI request, including “any submissions received”, adding it operates independently of the Scottish Government.
They added: “We considered it important that we allow care sector representatives an opportunity to share their concerns about the impact release of this sensitive information would have on families of the deceased, residents and staff.
"NRS shared this information with the SIC and decided to await the outcome of the appeal, at which point we fully complied with their instruction and made this data available, in line with the original FOI request.
"NRS were not directed by Ministers to withhold the release of information. It is standard practice for NRS to advise Ministers of publication of statistics and figures of this nature.”
A Scottish Government spokesperson said: “This was a matter for NRS and it was for NRS to decide the legal basis for publication of this data.
“Ministers were clear that release was a decision for NRS but were keen to ensure NRS considered arrangements for communication with the sector, including care homes and families. This was to ensure they were aware that this information was going to be released given the potential for upset and distress to staff and relatives and friends of those who had died.”