Humza Yousaf was advised by Nicola Sturgeon’s most senior medical adviser how to get around her rules on wearing a face mask when he was health secretary, the Covid inquiry has heard.
Professor Jason Leitch, Scotland’s national clinical director, became the latest senior figure from Ms Sturgeon’s government to admit he had deleted all his WhatsApp messages because of the pandemic.
But messages from others showed Mr Yousaf asking Prof Leitch what the rules were for wearing a mask at a dinner he attended on November 19, 2021.
Mr Yousaf said he knew he did not have to wear a mask when sitting, but was not aware of the rules on whether he needed one when “standing and talking to people”, despite he was Minister of Health at the time.
Prof Leitch replied: “Officially yes. But literally no one does that. Make sure you ALWAYS have a drink in your hands. Then you are exempt. So if someone walks by and you stand up, raise your drink.
Jamie Dawson KC, counsel to the inquiry, challenged Prof Leitch for advising Mr Yousaf on how to get around the SNP government’s own rules using an “interim solution”.
He asked: “If the Secretary of State for Health and Social Care didn’t understand the rules, what chance did anyone else have?”
Professor Leitch denied it was a solution, saying it was a “tricky area” and arguing the advice “follows the rules” as people were allowed to stand and talk without masks when drinking.
He admitted breaking the same rules by being photographed without a mask at a dinner, but argued this was “legitimate” because it was a “social occasion.”
However, Mr Dawson said: “You told him (Yousaf) to have something to drink in his hands at all times, whether he drank it or not.”
Prof Leitch became a household name in Scotland during the pandemic when he led many of the daily televised Covid briefings with Ms Sturgeon.
He told the inquiry, which is underway in Edinburgh, that he had developed a close working relationship with her.
WhatsApp removal ‘a bedtime ritual’
But there was an uproar last week after the investigation revealed that Ms Sturgeon and John Swinney, the former deputy first minister, had deleted all their WhatsApp messages due to the pandemic.
It also showed messages from a group in which Prof Leitch told his colleagues that “deleting WhatsApp is a before-bed ritual”.
This happened less than 24 hours after Boris Johnson announced the investigation.
The UK government wrote to all devolved governments in June 2021, February 2022 and October 2022 asking them to preserve and not destroy material of potential importance.
Under the Inquiries Act 2005, it is a criminal offense for someone to deliberately conceal, conceal, alter or destroy a “relevant” document. Lawyers representing surviving relatives have been instructed to prepare a criminal complaint.
Professor Leitch admitted he “assumed” there would be a public inquiry from the start of the pandemic in March 2020. Ms Sturgeon announced her intention to hold a separate Scottish inquiry in May that year.
However, in his written submission to the inquiry, he said: “Apart from direct messages from my Twitter account, I have not retained any one-to-one informal communications relating to the management of the pandemic in Scotland.”
Professor Leitch said his message about the ‘pre-bed ritual’ was ‘somewhat light-hearted’ and that he was ‘not deleting my WhatsApps on a daily basis’, but confirmed he would do so regularly.
He said: “I tried to do today’s work today and I could assure myself that the work had been managed and completed. I then deleted the informal messages that had led up to that moment. But this was a lighthearted exaggeration in an informal messaging group and it wasn’t done every day before I went to bed.
But the investigation showed another message from Prof Leitch, dated September 30, 2020, in which he told colleagues in a WhatsApp group: “Thank you all… and my usual friendly reminder to delete your chat… especially after we have come to a conclusion. Thanks everyone…”
‘I believe I have followed Scottish Government guidance’
Professor Leitch repeatedly argued that he was following the Scottish Government’s advice, which he said involved recording the “essence of that decision or advice” in the company’s file and then removing the messages.
He said the “informal chat” would be deleted rather than recorded, but was challenged by Mr Dawson over his decision to apply an “auto-delete feature” to one group, meaning their messages would be automatically deleted .
Mr Dawson argued that the messages would be destroyed without knowing “whether or not people had had the opportunity to upload important information to the company file”.
Professor Leitch insisted he felt “comfortable” that this would happen “very, very quickly” before the messages were deleted, but in a tense exchange he was repeatedly challenged on whether he had destroyed information that should have been retained .
Mr Dawson said there was a “requirement to retain communications beyond those you say are retained on the company file” and these included “discussions material to the business of the Scottish Government”.
Professor Leitch disputed that “you have removed such posts” and said: “I believe I have followed the Scottish Government guidance and my interpretation of it is correct”.
‘Plausible deniability is my middle name’
But Baroness Hallett, the inquiry chair, asked whether he continued to delete posts after the separate Scottish Covid inquiry was announced.
She asked: “You did not seek guidance as to whether you should do so, given that there would be a judge who had the right to require the production of documents and information?”
Professor Leitch responded that he was “continuing to follow the guidance as I saw it”, taking into account any updates from the Scottish Government.
The investigation was shown a message last week from Ken Thomson, manager of the Scottish Government’s Covid Coordination Directorate, warning colleagues that their WhatsApp conversation could be made public under Freedom of Information (FoI).
He followed up his warning to the group, which also included Prof Leitch, with a zipped mouth emoji. Mr Thomson also noted: “Plausible deniability is my middle name.”
Pressed by Lady Hallett, Prof Leitch denied he was one of many civil servants who were “quite keen” on removing posts.
He said: “It certainly isn’t – it wasn’t my position, obviously you’d have to ask others, but that wasn’t my position. My position was that I followed the guidelines and was not particularly enthusiastic or otherwise about removal.”
He admitted it would be wrong for posts to be removed to avoid FoI requests. Scotland’s Information Commissioner has said he was “deeply concerned” by the evidence submitted to the inquiry and that his office was considering the matter.