Deleted WhatsApp messages: What is a section 21 order? The UK Covid Inquiry and Professor Jason Leitch's role in WhatsApp row explained
Pressure is mounting on the UK Covid Inquiry to order the Scottish Government to hand over WhatsApp messages relating to Holyrood’s handling of the Covid-19 pandemic. But what powers does the inquiry have to compel the Scottish Government to hand them over?
What is a section 21 order?
The Scottish Covid Bereaved group, represented by Scottish human rights lawyer Aamer Anwer, is calling on the UK Covid Inquiry to issue a ‘section 21’ notice. It comes after electronic messages sent by national clinical director Jason Leitch during the pandemic have been deleted, according to The Times.
Prof Leitch reportedly deleted his WhatsApp communications every day, meaning none were left to preserve when a "do not destroy" notice was issued.
The national clinical director was a high-profile figure in Scotland throughout the pandemic, playing a key role in public health communication and engagement.
Section 21 of the 2005 Inquiries Act allows for the chair of an inquiry to require a person to give evidence, or to produce any documents.
A person is guilty of an offence under section 35 of the Act if they intentionally suppress or conceal a relevant document, or prevent it from being given to the inquiry. Sanctions for non-compliance with an inquiry apply under the Act. The offender may be imprisoned, fined or both.
"The Scottish Government tell us that they need an order under Section 21 of the Inquiries Act to provide these materials because of data protection concerns,” said Mr Anwer.
“Yet Counsel to the Inquiry tells us that this wasn’t raised by the Scottish Government as an impediment to providing the material until 5 October 2023. In our submissions to the Inquiry yesterday we sought the imposition of a section 21 order.
"We consider that a Section 21 order is now appropriate to ensure that the Scottish Government comply with the inquiry’s requests, or else face the possibility of criminal sanction.
“It's time that the Scottish Government stopped delaying and started complying.”
Why has the Scottish Government not released WhatsApp messages to date?
Curiously, the Scottish Government has said the only reason it has not produced this evidence if because a section 21 has not yet been issued, claiming data protection laws prohibit it from providing the evidence without a formal order.
A spokesperson for the Scottish Government told the BBC: "It is not the culture within Scottish Government to use WhatsApp for decision making – our records management policy states clearly that Government decisions should be recorded in the official record. The UK inquiry has that material from the official record."
The spokesperson said the inquiry had requested WhatsApp messages relating to logistics and day-to-day communication, which the Scottish Government would provide.
"However, given the level of personal information contained within, we need a legal basis to do so, for example in the form of a section 21 order," the spokesperson said.
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