Committee on the Scottish Government Handling of Harassment Complaints

Meeting date: Tuesday, September 8, 2020

Official Report 694KB pdf

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Judicial Review

We now move to our evidence session on phase 3 of the inquiry, which is on the judicial review.

The committee will not begin its detailed scrutiny of the judicial review until later in the inquiry, but it agreed that there was a need to hold this exploratory session with the Government. I have to say that that was due to the committee’s frustration at the lack of information on the issue that was being shared with it by the Government.

The committee has been informed by the permanent secretary and the Deputy First Minister that receiving a limited amount of documentation does not prevent a full account from being provided in oral evidence. As such, the committee agreed to invite key representatives from the Government to come before it so that it could receive that level of detail.

I welcome the Lord Advocate, the Right Honourable James Wolffe QC, and welcome back the permanent secretary, Leslie Evans.

The Lord Advocate made a solemn affirmation.

Lord Advocate, I should have realised that you would know the lines of the affirmation very well. [Laughter.]

I invite our witnesses to make short opening statements, starting with that of the Lord Advocate.

Thank you, convener, for the opportunity to make a short opening statement.

The petitioner in the judicial review challenged the lawfulness of the Government’s harassment policy, and its application in his case, on a number of grounds. For the reasons set out in the Government’s statement to the committee, the Government accepted that one of those grounds of challenge was well founded, and it conceded the case.

The Government has already publicly expressed its regret that its investigation in this case was flawed, and, on behalf of the Government, I reiterate that apology.

In its dealings with Parliament, the Government operates in a constitutional and legal framework, which includes: the principle of collective responsibility; the principle that, generally, ministers, not officials, are accountable for the actions of Government; the law officer convention; and legal professional privilege. None of those principles will prevent the Government from giving the committee a full account of its decision making and legal position in relation to the judicial review.

The Government has made clear its commitment to co-operating as fully as possible with the committee’s inquiry. It will provide the committee with a further written document, providing more detailed information about the judicial review. It is currently looking again at what steps it can take with a view to enabling the committee to have access, so far as possible, to relevant court documents. As for the Government’s legal position, ministers are available—indeed, I am available—to answer questions from the committee on that as required.

All Governments lose high-profile cases from time to time. It is a vindication of basic principles of constitutional democracy that the Government’s actions can be tested in court and that the Government accepts the outcome. If there are lessons to be learned from what happened, they should be learned, and the Government will learn any lessons that arise from this case.

I look forward to assisting the committee’s inquiry.

Thank you very much. I call Ms Evans to make her statement.

Given that today’s exploratory session is on the judicial review, let me say at the outset that the Scottish Government conceded that one part of the internal procedure should have been applied differently. I repeat my unreserved apology to all concerned for that procedural failure and my commitment that we shall apply learning, including from the forthcoming review led by Laura Dunlop QC.

Convener, an apology is important, but so is an explanation. Although the meaning of the procedures paragraph 10 about the role of the investigating officer was clear to those involved in its drafting, development and operation, which is that they should not be involved in the matter being investigated, in the context of the judicial review, it became clear that the paragraph was open to a different interpretation—that is, to mean that the investigating officer should have no involvement in the subject matter of the complaint, and, in addition, no prior contact with the complainers themselves.

During the judicial review, it became evident that removing the scope for any different interpretation would have been beneficial.

The test of bias in the judicial review is whether

“the fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the person judging the issue was biased.”

In December 2018, following legal advice, the Scottish Government concluded that interactions between the investigating officer and complainers were such that the test of apparent bias was met. Once that was clear, the decision to concede the judicial review was taken quickly.

However, and importantly, the basis for the Scottish Government’s concession of the judicial review was the acceptance of apparent bias, not actual bias. The Scottish Government did not, and does not, accept any suggestion that the investigating officer acted in a partial way, or that either the investigation or the decisions that were reached were partial. At all times, those involved in the procedure acted in good faith.

Thank you, permanent secretary. We move directly to questions.

My first questions are to the Lord Advocate. In your written submission, you state:

“I can also confirm on behalf of the Government that there was no decision to withhold documents relevant to the judicial review.”

Nonetheless, relevant documents were provided by the Scottish Government only as a result of commission and diligence. Why?

The first thing that I should make clear is to reiterate that, as I set out in my written statement, there was no decision to withhold documents from the judicial review. Indeed, the Government introduced into the judicial review proceedings the fact that the investigating officer had had contact with the complainer at an early stage.

The process of the production of documents proceeded voluntarily. At a certain point, a court order was made, as it might be in order to provide for the process of a commission to take place. In my professional experience, it is not unusual for the process of commission and diligence to produce additional material. That process involves detailed line-by-line and point-by-point examination of individuals who have access to documents to ask them about the searches that they have undertaken and the places where they may have documents.

It would clearly have been more satisfactory if that material had been available at a much earlier stage. In due course, the committee may want to investigate further the searches that were undertaken and how the late identification of additional documentation came about. However, it is the fact of what happened. There was voluntary disclosure of documents and in due course further disclosure of documents leading to a fuller picture of the interactions between the investigating officer and the complainers than had previously been available, the reassessment of the Government’s position in the judicial review and a decision to concede. Decisions to concede litigation reflect a responsible attitude to dealing with issues that arise in the conduct of litigation.

As I say, there may be more questions to ask about the detail of the investigation and the search for documents, but that is the fact of what happened.

The Scottish Government statement of 20 July confirms that those documents included a text message and calendar entries. Will you expand on why those documents were relevant?

I have come briefed to deal with this as an exploratory session looking particularly at further material that the Government may be able to provide. As I said in my opening statement, the Government will provide a more detailed account of what happened in the course of the judicial review. In particular, it is recognised that, in the chronology that was produced yesterday, the committee should be given more information about the period from September 2018 to January 2019 and the whole process of the disclosure of documents, recognising the fact that members’ interest in that speaks to an understandable interest on the part of the committee. The committee can expect more information about that process in due course, which will provide an opportunity for the committee to ask pointed questions—no doubt—of myself and others about why particular pieces of information resulted in a particular conclusion being drawn.

Are you aware of how, specifically, the documents, including the text and calendar entries were recovered through the commission process? Did the commission have to go to a specific person to recover those documents?

There are two separate questions within that. The first is about who was undertaking searches—which individuals. There is a separate question about the detail of what happened at the commission hearings. I am not sighted on those matters today and it would be fair to say that questions about precisely who was undertaking searches and how that was being done are better addressed to others.

I should say that I am not trying to resist those. As I said, the Government will make more information available, which I anticipate will facilitate questioning on the details of the sort that the member is pursuing.

11:30  

My next question is for Leslie Evans. Who had overall responsibility for the management of the judicial review, and how was that responsibility managed?

The judicial review process, which kicked off at the end of August 2018 and concluded in January 2019, had two components. There was the legal advice under the Scottish Government legal directorate, which is our legal team. Members of that team were informing and advising other parts of the Government about the process, how the procedure would work and acting to the client, if you like, on the legal aspects of the case. My office was the co-ordinating point for much of the work, but the work also drew on HR, legal advice and other parts of the organisation as appropriate.

In relation to how information was produced, there are specific procedures that we operate in such circumstances for searches such as word searches. As the Lord Advocate has suggested, I am sure that we can share information about how the procedure works.

Was it the case that the Government was already aware of the documents that were recovered through the commission and diligence but did not produce them because it did not think that they were relevant?

We were asked at frequent intervals, but particularly at the beginning, to do searches for particular documentation. Normally, when a search procedure is carried out, as you would imagine, it involves keywords that are entered into the system. After the evidence commission was established on 14 December, we were asked to revisit that with additional granularity. I think that you mentioned texts and calendar entries. Those were particularly asked for as part of the process. At that point, some information that had not been previously asked for at that level of granularity was revisited, with a wider set of search criteria.

It is worth pointing out that we had, I think, two working days and a weekend to turn that round, which is pretty intense. We have email traffic each week in the Scottish Government of 2.7 million items and something like 30 million items in our electronic management system at any time.

The point is well made.

Finally, who took the key strategic decisions on the Scottish Government’s response to the judicial review? Was it you, permanent secretary, or the First Minister?

I was cited and I was the decision maker in the procedure that was under scrutiny, so it was always going to be me who was responsible for ensuring that we responded to the JR. Of course, however, ministers were co-cited and they were co-respondents. Therefore, at key points during the process, based on legal advice from our legal colleagues, from counsel and from the Lord Advocate, there were regular reviews of the prospect of success and so on. At key points, those reviews were shared with me and the First Minister.

Lord Advocate, do you regard the Scottish Government’s position on the information that we have been able to see so far as being in line with the principle of open and transparent government?

The Government has provided the committee with a statement and relevant documentation. I have advised the committee this morning that, recognising the committee’s interest, which was reflected in the questions from Margaret Mitchell, the Government intends to provide a detailed account, with a degree of granular information, about what happened in the course of the judicial review. The Government is also actively exploring what further steps it can take proactively to enable the committee to have access, so far as possible, to relevant court documents.

On the assumption that all that is made available to the committee, that will enable the committee to get a much more granular and detailed understanding of what happened in the course of this particular litigation.

Can you comment on the legal authority that supports the Scottish Government’s blanket statement that documents that form part of the court process or which have been lodged with the court are the property of the court and cannot be released without the court’s permission?

Perhaps I can answer that question in this way. The annex to the committee’s letter of 11 August 2020 identifies a range of documents that the committee seeks in connection with the court process. The question of access to that wide range of documents is not straightforward. Different considerations apply to different types of documents, and that is overlaid by the particular restrictions that apply in this case, of which the committee is well aware.

Of course, the committee will appreciate that the interests of other parties, as well as of the court itself, are engaged. That is why—and I can confirm what the Deputy First Minister advised the committee yesterday—the Government is actively looking at what steps it can take proactively to ensure that, so far as possible, those documents are made available to the committee. Although I cannot guarantee what the outcome of that will be, I will be disappointed if that does not result in the committee being able to have access to relevant court documents, so far as possible.

That will be warmly welcomed. We want to understand documents that might have importance to the context of our inquiry, which we have not been able to benefit from so far.

My final question is on the investigator’s independence—or otherwise—in the development of the process. Colleagues have already raised this morning the issue that complainers had been made aware that Judith Mackinnon would be the investigating officer. We have also heard comments from the permanent secretary about the ideal time to introduce that element of independence—that perhaps it might be off-putting to some and might be seen as an escalation, as it makes something that could be dealt with informally a bigger matter than it might otherwise be.

In this case, we have the impact of the apparent or actual lack of independence. Was that a concern to you, as the process was taking place? I hope that, at some point, the committee will be able to understand why it took so long for this to become the issue that it became.

I absolutely understand the point about timing. That is well understood.

The committee will understand that I am not going to talk about when or to what extent I was or was not involved personally, for reasons that have been explained to you. On the Government’s legal position, I can say that the Government—as I think that the permanent secretary has already said—interpreted its policy in a particular way, in terms of the absence of previous involvement of the investigating officer in the matters being investigated.

In any litigation against the Government, the Government’s legal position comes under scrutiny and has to be looked at again. In the course of the judicial review, it was recognised that there was an alternative interpretation of policy and that there was an issue of interpretation. The Government was content that that issue of interpretation could and should be put before the court for a decision. There are often advantages in getting the clarity of a court decision.

That decision was taken at a particular stage in the process, as the Government statement made clear. The identification of further documents, and what that disclosed about the interactions between the investigating officer and the complainers, led to a review of the Government’s position in the light of the additional common-law requirements in relation to the appearance of fairness.

As the permanent secretary has said, a conclusion was reached, in light of the fuller picture of those interactions that was then available, that that common-law test was met and that the actions should be conceded.

At what point was the Government aware that the petition was being contested on particular grounds?

The petition raised a number of grounds of challenge, both to the lawfulness of the policy itself and to the way in which it had been applied in this case. I hope that the Government will be able to give the committee more detail on that. The Government decided to contest the petition—to resist it on the grounds on which it was brought—at a later stage in the process. That is part of the further information that I expect the Government to make available to the committee.

At a later stage in the process, the Government adjusted its pleadings in a way that, among other things, disclosed the interaction between the investigating officer and the complainers. The Government put that into the domain of the litigation. The petitioner then revised his petition to add grounds challenging the application of the procedure because of that interaction. That then, in the course of the production of documents that looked at that particular issue, ultimately led to the concession.

You have said to two committee members that we would get further information. Is that a decision that has now been made? When can we expect that further information?

Yes, that decision has been made. The Deputy First Minister’s letter to the committee on 7 September refers to a more detailed chronology.

As with previous requests to the permanent secretary, I am afraid that I cannot give the committee a date, but I can say that it is understood that the committee is taking an interest in the detail of the judicial review process. I suspect that the completion of that work may well have to be aligned with the steps that are being taken with a view to enabling the committee to have access to the court documents.

The convener will appreciate that an accurate understanding of the scope of, and any limits to, the ability to provide access to those court documents is something that the Government will have to make sure that it accurately reflects in the information that it provides.

To accurately reflect what the committee has heard, are you saying that the additional information that you are talking about is the chronology that was referred to in the Deputy First Minister’s letter, and not anything further?

It may take the form of a chronology or it could take the form of a written statement, but I anticipate that additional information about the progress, as it were, of the judicial review will be made available to the committee. That will be done both through steps that are proactively being taken to enable the committee to have access the court documents—I cannot today guarantee what the outcome of that will be, but I will be disappointed if that does not bear fruit—and through the Government providing additional information in response to the questions that the committee is asking.

You have referred to the Deputy First Minister’s letter, which talks about the chronology. However, you also said in response to Alison Johnstone that it is likely that the committee will get information at a later stage in the process.

The key point is that the Government will provide additional information about the process of the judicial review in a much more fine-grained way than it did in its initial statement, in order to respond to questions such as those that Margaret Mitchell asked earlier.

Hmm. Would the permanent secretary like to respond to my questions in relation to deadlines that were set and information that was requested but which has not arrived? I am sure that other members of the committee would like to pursue some of that further.

11:45  

It feels to me as if there are two elements here. We have complied with deadlines so far. Although there have been question marks over whether that has been the case, I reassure you that we have complied with all three deadlines. The fourth deadline is to do with information on the investigation that is due to come out, which I know the committee is awaiting. That is connected to the work that is already under way, as the Lord Advocate mentioned, to ensure that we can share as much as possible with the committee. There is a connection, as part of that information on the investigation, which has an element of the request that the Lord Advocate made reference to, in terms of the court and undertakings that have been given to the court.

From our point of view, as the Lord Advocate said, the issue is to give the committee as much information as possible and, as far as possible, at the same time. However, that has a connection to the dealings with the court that the Lord Advocate referenced.

I do not think that I can add anything further to that.

Okay; thank you for that. As I said, I am sure that other committee members would like to probe that further.

I will pursue—initially with the Lord Advocate—issues around the Scottish Government’s legal position. I appreciate that we have not seen the legal advice—that is a matter of on-going discussion between the committee and the Government—but the Deputy First Minister and the Lord Advocate have said in correspondence to the committee that they will be happy to give a full account of the legal position at different points in time in relation to areas of interest to the committee.

In that vein, I will start at the end of the process and work back. I will look first at the issue of the expenses that were paid to Mr Salmond, which totalled £512,250. As you will be aware, Lord Advocate, under normal circumstances, in a litigation, expenses are usually awarded on a party and party scale but, in this case, they were awarded on the much higher scale of agent and client, client paying. In your written submission, you said:

“The rules on the recovery of expenses in litigation provide for payment of an additional fee in certain specified circumstances, and, in this case the Scottish Government accepted that an additional fee was justified on a number of heads.”

According to advice from Lord Hodge, with whom you will be familiar, those additional expenses would be paid

“where one of the parties has conducted the litigation incompetently or unreasonably, and thereby caused the other party unnecessary expense”.

Was your defence incompetent or unreasonable, or both?

There are two issues in the question. One is the question of the additional fee element, and the other is the question of the agent and client, client paying scale. The quotation that you gave is related to the agent and client, client paying element. That was a reflection of the way in which the disclosure of documents emerged in the course of the litigation and the unsatisfactory circumstance in which, very late in the day, the Government conceded the case on the basis of information that, by that time, had come to light, but in a context in which it had taken some time for documents to be produced. Therefore, it is a reflection of the course that the litigation took and the legitimate expectation that, so far as possible, the Government will have identified the relevant material at an early stage. In this case, that did not happen, and the consequence followed.

On the additional fee element, various factors are taken into account in the rules of court, such as the complexity of the case, the skill, time, labour and specialised knowledge required of the solicitor, the number or importance of documents prepared, the importance of the cause or the subject matter to the client, and so on. There are a number of heads under the rules of court that fall to be considered in deciding whether an additional fee may be payable. In this case, it was clear that a number of those heads were satisfied and that it was entirely right that an additional fee be paid.

If I heard you rightly, you have accepted that the Scottish Government’s handling of this was unsatisfactory. However, does that amount to incompetence or unreasonableness?

I am not going to use any particular adjective, but, certainly, as the Government’s senior law officer, I would like to see circumstances in which the Government made the right decisions at the right time and at the earliest possible point in the context of a litigation.

However, the world is not perfect and things do not go as one might like them to. In this case, for reasons that I am sure that the committee will be interested in exploring, the decision was not made until a late point in the case. Such things happen in litigation, which is not a scientific exercise. I have already made the point that, in my professional experience, it is not unusual for a commission process to result in the identification and production of material that, in perfectly good faith, witnesses did not previously identify, and for that to cast a different light on a litigant’s position. The important thing is that, whether a litigant is a public authority or not, the issues are addressed on their merits as and when they arise.

The petition was served on the Scottish Government on 31 August 2018. At that point, when legal advice was taken internally from you and your colleagues who are law officers, what was the consideration of the strength of the Scottish Government’s position in relation to defending the petition?

At that point, the issue upon which the Government ultimately conceded was not part of the case. That is perhaps an important point to make. At that stage, the Government was entirely satisfied that it was right to contest the petition on all the grounds that were being advanced at that time, and, indeed, the concession ultimately made did not relate to any of those grounds.

Is it correct that the Scottish Government took counsel’s opinion from a senior Queen’s counsel in September 2018 that advised that the case was not a strong one, and that the Scottish Government did not have a good case to defend?

As the committee is well aware, the Government does not disclose either the content or the source of its legal advice.

Well, just to remind you, Lord Advocate, you wrote to us to say that you would be happy to give us a full account of your legal position at different points in time. I think that it is a relevant question whether you had taken counsel’s opinion that guided your defence.

There is a really important difference between the Government’s position at any particular point in time and the process by which that position is arrived at. The normal process of Government decision making is that policy makers and decision makers seek legal advice and assess it. There may be competing points of view being advanced, so Government assesses the position and reaches a view with regard to the legal position that it is prepared to defend. Ultimately, the Government is accountable for that position first of all in court. It is quite important to note that, in this context, the Government was considering the position and deciding what position it was prepared to stand up and defend in court. Further, of course, the Government is ultimately accountable to parliamentarians and others for the legal position that it adopts.

It is a principle—it may be that we can touch on this further—that the Government is always entirely accountable for the legal position that it takes and for the legal considerations that underpin a policy decision. From whom particular legal advice is taken and the content of that advice in the context of reaching that position are not disclosed.

I will move on to the period 19 to 21 December 2018, when the commission was being heard. At that point, there was a light-bulb moment—if I can call it that—and the Scottish Government realised that the case was no longer defensible. What was behind that change of opinion, and why was that flaw in the defence not spotted sooner?

The committee will appreciate that the legal conclusion—the legal judgment—depends on the facts and the factual circumstances to which that judgment is being applied. The committee has already heard and is aware that documentation came to light in the course of the commission process that led to our reassessment of the Government’s position—

With respect, that was documentation that the Scottish Government already had.

I do not for a moment question the interest that the committee will have in looking at the process of disclosure of documents. As I said earlier, litigation is a high-pressure process, and it is not a perfect process.

There was disclosure of documents, and there were further searches in due course. Particular documents came to light that had not previously been identified, which gave a fuller picture of the interaction between the investigating officer and the complainers, and that led to the conclusion to concede the litigation.

The failure to spot to spot that fuller picture cost the taxpayer £512,000.

There might be a question about the point at which it would have been reasonable to identify that and about what level of expense was incurred before and afterwards. I cannot really assist any further on that question.

I have one more question, which is for the permanent secretary. It was reported that after the conclusion of the judicial review case, you sent a text message to a colleague that contained the words:

“We may have lost the battle, but we will win the war.”

What did you mean by that?

That has been misinterpreted as having some kind of conspiratorial element to it. I clearly say that that is not the case.

I have been working, since I was first appointed as permanent secretary on 1 July 2015, to make the organisation a more inclusive and diverse one that respects everybody’s right to come to work and have the right kind of conditions at work. I have worked to ensure that equality is at the heart of the business of government, and also at the heart of the organisational culture.

I was not referring to any individual when I sent that text. I was talking about a long-term commitment of mine, and indeed of the Scottish Government—as you will see from its policy documents—to ensure that equality lies at the heart of what it does and of how it operates as an organisation.

So you were not at war with Alex Salmond?

No.

I have two or three questions for the permanent secretary and then some questions for the Lord Advocate.

Permanent secretary, I have a couple of quick questions to begin with. I refer to the Scottish Government’s written statement to the committee on its participation in the judicial review, which is dated 20 July 2020. I wonder whether you could confirm something for the record. Paragraph 9 states:

“On 22 August 2018, following the conclusion of the investigation, the Permanent Secretary notified the former First Minister of her decision.”

Is that statement accurate? Do you stand by it?

12:00  

I think that that is accurate, if it is in the submission.

Paragraph 20 contains the following sentence:

“The Permanent Secretary is the decision-maker under the Procedure at issue in the proceedings.”

For the record, are you still content with that statement?

I am the decision maker under the procedure.

I move on to paragraph 27. We know from paragraph 40 that

“The Permanent Secretary ... concluded on 2 January 2019 that the Scottish Government should concede the”

case. Paragraph 27 refers to:

“the terms on which settlement of the case had been agreed, including that the decision under review was unlawful in that it was taken in circumstances which were ‘procedurally unfair and tainted by apparent bias’.”

How does that fit with everything that the inquiry has heard to date about the development of the policy being lawful? When we see the term “procedurally unfair”, it is clear that the procedures that were developed by civil servants have been found wanting. How does that fit?

I think that I have never said anything other than to use the term “apparent bias” when I have spoken about the settlement of the JR. As I said in my opening statement, there was “apparent bias, not actual bias”—it is important to get that on the record.

The only other thing that I can say is that, as the committee has heard over its past three sessions, the procedure was developed by civil servants, who were professionals in their area, taking into account legal advice at all stages. The procedure was developed not in a vacuum, but through a professional process, which took into account advice from a range of sources but which also took legal advice into account throughout.

As you have heard from the Lord Advocate—I am not one to speak in these terms—judicial processes are not a science, and there will be different views taken on the application of procedures, as there was in this case.

They are clearly not a science—I am sure that we will come on to that.

We have repeatedly heard about the split between “apparent” and “actual” bias. With regard to whether a policy is robust, fair or legal, is it not the case that perception of bias can be everything?

Clearly.

I would like to ask a few general questions of the Lord Advocate to begin. As a non-legal person, I would find it quite helpful if you could set the scene. Is it the case that, more often than not—in general, for the purposes of government—legal opinion is more about shades of grey than black-and-white issues?

Would it be the case that, perhaps not as the norm, but on occasion, Government either disputes or ignores legal advice?

Before I answer those two questions, I will pick up on Ms Constance’s question to the permanent secretary.

In the context of those questions, it is important to distinguish between the procedure itself and the way in which it was applied in this case. What went wrong in this case concerned a set of interactions that reflected individuals’ understanding at the time about what the procedure meant. There is a legitimate legal dispute about what it did or did not mean, but on examination, once the full picture was available, it was judged to meet the test for apparent bias, which overlays the appearance of fairness. That had to do with the nature and extent of the interactions rather than with something intrinsic to the procedure itself. No doubt the committee might wish to look at that in more detail in due course.

I turn to the questions that Ms Constance directed to me. On her first point, she is absolutely right that the range of legal work involved in government is vast and wide ranging in extent. It covers everything from current and future bills to subordinate legislation, policy making, legal issues that arise in the administration of policy, and litigation. In the context of legal advice generally—this is not peculiar to government, but it happens particularly in that context—it is not unusual that issues may not be definitive. Indeed, different legal views might be legitimately expressed and taken on particular issues. That is not at all unusual. The member is therefore absolutely right to refer to there possibly being shades of grey in legal advice.

So far as Ms Constance’s second question is concerned, the ministerial code makes clear the expectation that ministers and policy makers—

To give an example at an elementary level, if I am having my will drawn up, in a conversation with my lawyer I might say, “I want X, Y and Z.” He might reply, “No. That is completely unnecessary—you don’t want to do that, because there is a risk,” and I might then say, “Well, I hear what you’re saying, but in the context of my life I do want that,” because I think that the risk is less relevant. Do such conversations happen in Government circles, too?

A basic point comes from the example that Ms Constance has given, which is that legal advisers advise and clients—in this case, policy makers and ministers—decide. However, it is inherent in Government, and the ministerial code makes clear the expectation, that

“Ministers and officials should ... ensure that their decisions are informed by appropriate analysis of the legal considerations and that the legal implications of any course of action are considered at the earliest opportunity.”

Within Government, there is a structure, of which the law officers are part, which reflects the importance of legal considerations being fully taken into account in the development of policy. Ultimately, though, it is ministers and policy makers who make decisions and who stand up and account for those day and daily in Parliament. They routinely account for the legal implications as well as for the policy decisions, in so far as the legal implications have informed such decisions. That is a routine part of Government action.

Is the bottom line not that, at the end of the day, policy makers such as the permanent secretary and ministers do not have to accept every word of legal advice—they need to consider it?

Of course they need to consider it. As I have said, ultimately, decision makers decide and policy makers make decisions. However, one of the features of Government is the responsibilities that Government lawyers have and those that law officers, as the ministers with particular responsibility in the area, ultimately have to assist Government to live up to its commitment to act lawfully.

Angela Constance is absolutely right: ministers and policy makers make the decisions. One of the jobs of the system of Government with law officers at the head is to ensure that the legal considerations are at least fully taken into account and fully bottomed out, that any shades of grey are recognised, and that the legal implications are considered. Does that always happen according to that perfect model? It is a human system.

Ultimately, it comes down to fine decisions around judgments. Without seeing legal advice, how can the committee know whether the Government accepted that advice in all its detail? How can we hold the permanent secretary and others to account on those finer judgments?

The committee will have information about the legal position that the Government took at particular points, and that position can be tested. Indeed, the committee is already testing the decision that was made to defend the petition at the outset by looking at the concession that was made at the end of the process and asking why that concession was not made at an earlier stage. The Government will have to explain to the committee why that concession was not made at an earlier stage.

The Government is accountable in court and in Parliament for the legal position that it adopts, and it can be accountable without disclosing—I will come back to this in a moment—who said what to whom and what internal process of consideration there was. There is real importance in holding to that principle because, if one did not hold to it, a disincentive would be created for ministers and policy makers who are seeking legal advice and to be informed fully about the legal implications, and that would ultimately undermine the structure that I mentioned.

It is clear that the Government was always intent on contesting the case, but it did not oppose the permission to proceed. Can you give us any indication of the Government’s considerations at that point?

There are two questions in any judicial review. First, a judicial review does not get off the ground unless the court gives it permission to proceed. Because of the nature of that decision, the threshold for refusing permission is set at an appropriately low bar so that appropriately arguable cases will go forward to a full hearing. The Government took the view that the petition met that bar in terms of arguability and that the court would be likely to grant permission, but it was nevertheless content that the issues that were raised in the petition were ones that it should contest.

It did that accepting that there was some case that you were going to have to defend.

We heard last week from trade unions about some of the difficulties in developing policy around the employment relationship between ministers and the Scottish Government. They talked about some of the practical difficulties that there are when people do not work for the Government or, indeed, when someone is a former minister. Can you say anything about the legal basis for the procedure and considerations in the judicial review process on that particular issue, given the difficulties with employment relationships—or lack of them?

12:15  

I apologise, but I am not clear about which particular issue the member is asking about.

Last week, the trade unions said that when a policy is devised or proceeded with, if there is not a direct employment relationship between the accused—for want of a better word—and the Government, that is a tricky area to be in. How were those issues considered while the judicial review was being progressed?

I mentioned at the outset that the petition presented a challenge on a number of grounds to the policy itself and to its application. The Government was content to defend the petition on all the grounds that were initially stated and, in particular, on all the grounds to do with challenging the legality of the policy itself. I would have to remind myself whether the particular issue that the member has raised was one of those grounds, but the Government was content to defend the petition on all the grounds to do with the lawfulness of the policy, as it were.

We know on which ground the Government conceded, and a promise has been made to provide additional information. Will the additional information give the committee any insight into the grounds on which the Government was originally challenged, bearing in mind that it was challenged on a range of grounds?

I have already said that the Government is actively looking at how it can make the court papers available to the greatest extent possible, and I would hope that that process will reveal that.

With the convener’s indulgence, I have a final question for the permanent secretary, which relates to paragraph 37 of the judicial review document. It states:

“The Deputy Director for People Advice, had contact, before her appointment as Investigating Officer, with the two members of staff who lodged concerns in advance of their decisions to make formal complaints.”

What was the context of that contact? Was it specifically to do with concerns or was it more general contact through day-to-day Government business?

The contact, which took place alongside contact with a range of other people who had raised concerns, was about ensuring that those people knew what their options were—they could go to the police, but there was also a procedure that they could use—and what support was available.

I would like to make a short point in response to Ms Constance’s point about taking legal advice. I will say two things. In my experience as a civil servant, it is very unusual, as a policy maker, not to take legal advice. That is a constant ingredient in the way in which policy is developed. If legal advice was not taken into account, that would be clearly challenged on a number of levels. That would be very unusual indeed.

I suppose that the issue is visibility to us.

I understand that.

An hour has gone by and only three committee members have asked questions. I am not making comment on anyone’s verbosity.

Alex Cole-Hamilton—I did not mean to say your name straight after using that term, Mr Cole-Hamilton.

If the shoe fits ...

I want to follow up on a line of questioning that Murdo Fraser pursued with the Lord Advocate. You are observing the protocol that the Government does not talk about legal advice that it has received. However, I reckon that if no legal opinion existed that suggested that the Government was on unsafe ground in defending the judicial review, you could tell us that. Can you confirm that there was no legal opinion that said that?

The Government does not disclose either the content or the source of its legal advice.

Permanent secretary, I want to follow up on some of Angela Constance’s questions about contact. I am keen to understand the steps that you took to satisfy yourself that the Government had acted properly and that its position was defensible, after it became clear that Mr Salmond intended to take the investigation to judicial review. In that context, when did you first learn about the contact between Judith Mackinnon and the complainer?

I am pausing only to think carefully about what I knew and when. I would have been aware that the investigating officer was having contact with people who were raising concerns.

I am sorry; I should have said that I mean prior to her being appointed as investigating officer.

Yes, that was my point. I would be aware that Judith Mackinnon, in her professional capacity, would have had contact with many of those who had raised concerns, some of whom had decided to take them into complaints, and that the contact was pretty generic—of the kind that was mentioned by Ms Constance. However, I would not have known who the people were and I would not have known the extent of that contact. That would have not been appropriate for me, as the decision-maker in the procedure, as Ms Constance pointed out, nor indeed in respect of my general day-to-day level of detail.

Going through the procedure line by line, you would have recognised that improper contact between an investigating officer and complainer, prior to appointment as investigating officer, would have created an exposed flank for the Government. When the petition was lodged, did you interrogate all the contact that had happened between Judith Mackinnon and the complainer, or did you ask somebody else to interrogate that contact?

We need to go back to what the Lord Advocate said. When the petition was set out for the judicial review, the investigating officer and the role of the investigating officer did not appear in it.

Okay. Did you see every piece of written correspondence, during the due diligence in preparing for the review? Although that was not part of the complaint at the time, it might have represented an exposed flank further down the line, but you did not take that belt-and-braces approach.

I was aware that there was an information-gathering process, of course, because my own access to information and emails was part of that. At that stage, there was a procedure that was calling for information quite early on about how the procedure was implemented, who was involved, who the key players were, what their roles were and so on. There were hundreds of documents, so if you are asking whether I looked at every single document, the answer is no, I did not. However, I would have expected that procedure to have been carried out by individuals doing searches using key criteria, and that is what happened.

Were you aware that Nicola Richards and Judith Mackinnon had met complainers and had subsequently revealed to a potential complainer the existence of other complainers?

No. I do not think that I was aware of that at the time. I cannot recall being aware of it—put it that way.

When did you become aware of that?

When did I become aware that Judith Mackinnon had mentioned other complainers to—

Prior to anybody lodging a formal complaint—

I do not recall that coming up at all, during that time. Of course, however, it is not unusual to do that. It is not the case that this is a particularly extraordinary occurrence; it is not unusual for people to be told that other complainers are coming forward in other procedures.

In retrospect, however, looking at those events, could they be seen as something of a fishing expedition in an effort to trigger a complaint?

No. It is so important that we get this on the record. There was no “fishing expedition”. I have learned that there were a number of people—10—who were raising concerns about their treatment and their experience in the Government at that time. Two of those people decided quite legitimately to take that into the procedure that was marked “Complaint”, and to formalise it. The apparent confection that there was some kind of “fishing” exercise encouraging people to do that or to be preyed upon in some way goes against everything that is in the DNA of a professional HR person.

I take that in the spirit in which it has been offered, but we have to ask the questions.

Of course.

Murdo Fraser referred to a “light-bulb moment”—the point at which the Government realised that it was going to lose the case. Lord Advocate—I think that you said that that was when certain information came to light. Permanent secretary, did you feel that that information was hidden from you when you were preparing the Government’s case for the judicial review?

That would imply that information was being deliberately kept from me. So no, I was not aware of the information, but do I think that it was being hidden from me? No.

Has anybody in the Scottish Government been the subjected of disciplinary action as a result of their role in the flawed investigation that led to the judicial review?

We do not talk about disciplinary action in public, as you know.

Could you clarify one point that has been discussed and has gone round the houses in the committee—the appointment of an independent party? I will not name them, although you will know who I am referring to. In some of the discussion at the committee, it has been suggested that you recommended an independent party, whereas some of the correspondence that we have had from James Hynd suggests that you simply put forward names of people who could fill that role. Before we go any further, could you clarify that point, please?

I am happy to do that; it has perhaps got a little confused.

First, James Hynd did not propose that an independent element be introduced to the process; he responded to my request to consider how independence might be included. He returned to it and suggested names of senior civil servants, who would not be independent; they would not have been external to the Government, and they would not have been independent third parties.

More important, or as important, is that it is possible that those people might have been present at the time of the events taking place, which was a key part of the investigating officer description and role: the person should not have been party to the issues under discussion. More important is that those people would not have had the HR experience or qualification that could be considered to be essential for that kind of complex and difficult issue, which was likely to be considered as part of the procedure.

I will move on to a different subject. You raised the issue about who was whose line manager. Can you say a bit more about the hierarchy of people who were, on a day-to-day basis, dealing with all this stuff and with the judicial review? How did that work?

There was a range of people involved. For those of you who are not familiar with what some might describe as the byzantine hierarchy of the civil service, the main points when it comes to senior civil servants are as follows. People at the deputy director level—the name of the investigating officer, Judith Mackinnon, who is a deputy director, has already been mentioned today—report to a director such as Nicky Richards, who is head of HR. James Hynd is a deputy director, and he would report to his director. All directors—a large number—report to directors general, and all the directors general report to me.

The important thing to mention—this is perhaps part of what you are interested in—is that people with a specialist responsibility, particularly in the corporate centre of the organisation, if I can call it that, have a roving responsibility across the organisation, in that they are not solely or uniquely focused on one policy area, but work across all of Government. They might be talking to me about something one day, and might be talking to another director general at another stage. They are a corporate resource, if I can put it that way.

Both the people from whom you have received evidence—James Hynd and Nicky Richards—are indeed corporate resources, and are among the most professional people whom I have worked with in my career as a civil servant.

Lord Advocate, you mentioned at the beginning that the Government, or all Governments, deal with many cases that come before them in the form of judicial review. Was there anything about this case, which externally appears to be so extraordinary, that was handled differently from all the other many cases that you have referred to, or was the process that was used in this case entirely the same?

12:30  

The member is absolutely right that the Government routinely deals with a significant volume of litigation. At any given time, there might be 100 or more cases to which the Government is party, at all levels of courts and with a wide range of complexity and profile. Some of the litigation is relatively routine and some of it is very high profile. Some has real significance for policy, and some, for other reasons, is very much in the public eye. Each litigation needs to be handled appropriately and in a manner that reflects the particular circumstances of the case.

In this case, there was nothing intrinsically out of the ordinary in the procedures that fell to be applied or the approach. As the committee is well aware, the case was very much in the public eye, and its significance in that sense was not lost on those who were involved. However, as a litigation, it had to be handled as other litigations are handled. Legal advice was taken, considered and assessed, the Government had to decide how to respond to the case, and decisions were made in the course of the conduct of the litigation. Ultimately, there was a review of the Government’s position, which led to a concession.

Clearly, it would have been significantly better if those processes had been brought forward, but the processes were not peculiar to this case. From time to time, Governments lose cases and from time to time they concede cases. It is proper that they should do so, and that they accept the outcome.

What role, if any, did special advisers have in relation to the judicial review? Were the skills of special advisers sought?

They had none, that I am aware of.

I am not sure that I can help with that question.

Are you both saying that, as far as you are aware, no special advisers were involved in any part of the judicial review?

I would not see a natural role for special advisers. I am not saying that there were not conversations with special advisers—I could not possibly say that on oath. However, I am not aware that that happened. It is not an obvious locus for a special adviser.

In speaking about the Government’s legal position, I cannot really comment on that. I cannot say anything other than what the permanent secretary has said. On oath, I could not say to the committee that there was no special adviser involvement, but I certainly do not recall any such involvement to which I could speak.

I will move on to ministerial oversight of the judicial review process. Were any Government ministers regularly advised of the process of the judicial review and what discussions were had?

The First Minister was kept apprised of key points during the judicial review.

Lord Advocate, you have said that the Government will, at some point, explain to the committee why it did not fold earlier. Of course, you are the Government—you are a minister as well as the senior legal adviser—so I am wondering: why not tell us now?

I rather thought that I had. It is also in the Government’s statement. Searches were undertaken to produce relevant documentation, and additional documentation came to light that gave a fuller understanding of the interactions between the investigating officer and the complainers. The Government reviewed its legal position, as it does from time to time in any case, and it took the view that the right thing to do was to concede on the particular ground that it conceded on.

Okay. I take you back to the Government’s published response to a freedom of information request. It led to us to understand that there were 17 consultations with external counsel to discuss the judicial review. In response to my colleague Murdo Fraser, you said that you cannot tell us whether advice was given in September, but let us assume that it was given then. Just so that I understand these things, was it the same counsel throughout? Did you chop and change counsel? Was the advice that was given consistent, or was it wildly different?

Throughout the judicial review the same counsel were instructed for the Scottish Government. I cannot speak specifically to the number of meetings nor, as the member recognises, can I say anything about the content of advice that may or may not have been tendered at different stages.

If it were the same counsel, it would be reasonable for me to assume that it was the same kind of legal advice—that there would be consistency to it.

There is a point that I have made, and I am making it very much in the generality—I would not want the committee to take anything in relation to this case—about the tendering of legal advice.

Ultimately, in any litigation, there is a process by which the Government determines the position on which it is prepared to stand in court. That is quite important—that it is a position that the Government is prepared to stand on in court. In the course of this case, for the reasons that the committee has been aware of, the Government took the view that it was not prepared to stand on the ground that it conceded.

Can I take you back to the legal advice? I understand your limitations, but in response to a parliamentary question, I was told that you have given information on legal advice to a number of inquiries, including the child abuse inquiry and the contaminated blood inquiry. I wonder why you cannot give information about legal advice to a parliamentary inquiry.

I am aware of the parliamentary question and the answer—

Were you consulted on it?

I could not possibly comment on whether I was or was not.

No, indeed. That would be legal advice, would it not?

Also, the Government does not disclose the involvement of law officers, or their non-involvement, in any particular matter—

I will pretend that you are not here, then.

There is an important point there. I am ministerially responsible for the Government’s legal advice, whoever gave it. Therefore, which particular lawyer said what to whom is neither here nor there, because ultimately I answer for that legal advice.

To come back to the member’s question, I suppose what that answer reveals is just how rare it is that the Government waives its position: those were the three occasions since devolution. I have been made aware of one additional case. The very first bill that was laid before the Parliament for debate was an emergency bill responding to a decision of the sheriff court in relation to the release of an in-patient in Carstairs. The then Lord Advocate, Lord Hardie, disclosed the content and source of legal advice in the course of debate, to the effect that there was no legal means for reviewing the sheriff’s decision. So—

Sorry to interrupt. You will appreciate that you have revealed it in the past, and this is a parliamentary inquiry involving the current First Minister, the former First Minister and the permanent secretary. On what basis would you withhold the legal advice from a parliamentary inquiry? Are we not as important as a judicial inquiry? Does democratic accountability not count?

I would not for a moment suggest that, and the member would not suggest that. On the contrary, I recognise the importance of democratic accountability. Of course, ministers appear in Parliament on the basis of the set of constitutional principles that I outlined in my opening statement.

It is really important to say that the assertion of legal professional privilege is routine. Its waiver is exceptionally rare, and it happens against the background of very strong reasons of public policy for maintaining that confidentiality, which facilitates and encourages the seeking and receipt of legal advice by policy makers and ministers on a basis of absolute candour.

I would be concerned, as a law officer, about any weakening of that position which might disincentivise the proper involvement of lawyers in policy making—

Indeed, but I am sure that you would agree that these are exceptional circumstances.

Well, as I think Dr Allan’s question revealed, litigation with Government is not particularly exceptional—

Parliamentary inquiries into it are.

—and high-profile litigation is not exceptional.

In the context of a litigation, where inevitably the Government’s previous legal position may come under scrutiny and test, it is particularly important that the Government is not disincentivised from seeking and obtaining legal advice on the basis of absolute candour. It is also fair to say that, the more an issue is a matter of live political debate, the greater is the risk that a waiver of privilege would undermine that.

The structures that are in place are designed to support the public interest in good government and to ensure that the Government, as far as it can, lives up to its commitment to act in accordance with the law and the proper administration of justice.

Sure. I am conscious that the convener will shout at me if I take too long, so I will rattle through my other questions.

Going back to the 17 meetings—you were not aware of how many there were—did you attend any of them, most of them or all of them?

As I said earlier, the Government does not disclose the involvement or non-involvement of law officers in any particular matter—

Ah, so you could have been there. Okay. I—

No. I am sorry. The member should take nothing from that one way or the other—

Okay. I will take nothing from it. Let me—

The Government simply does not—

I will ask the permanent secretary, then, because she can answer, whether she was at those meetings.

I was not at all 17 meetings.

Okay. You were at some of them, then.

I was at a few.

Okay. Can you tell us who else was there, aside from law officers, because we should not know that. Were special advisers ever there?

I do not know. Not in the time of the meetings that I was at, that I can recall—no.

Okay. Can somebody provide us with a list of those who were there, if it is appropriate to do so?

If it is appropriate, we will do so—

Was the First Minister ever there?

I can give you a list of who might have been there—

Okay.

—if I am allowed to do that.

Can you say whether the First Minister was there?

The First Minister was present with me at two meetings that I can recall.

Okay. Is it normal for First Ministers to get involved in judicial reviews, or discussions about them?

This is the only judicial review that I have been involved in, so I cannot comment on that.

So you do not know about precedent in the organisation. I certainly cannot remember any First Minister being involved.

I do not have a corporate—

I am assuming that it is not—

—memory of that kind, but I do not think that you should read anything into it.

Okay. Well, if you can advise the committee of that, it would be helpful.

I will go back to the Lord Advocate—sorry, you did not get off so lightly. We have a letter from Levy & McRae, which acts on behalf of the former First Minister, and it says quite clearly that the Scottish Government’s position, which is that whether the committee obtains documents is a matter for the courts, is in some way incorrect. The documents that you provided to the court are the Government’s documents—the Government initiated them—and they could be provided to the committee, subject to the appropriate redactions. Is that correct?

I should say that I was grateful for sight of that letter just before I came in. I suppose that that letter reveals that this is not an entirely straightforward process.

Indeed. We are understanding that.

I think that the member would accept that.

I made the point in answer to earlier questions that the committee has asked for a very significant volume of different categories of documents relating to the judicial review, and different issues arise in relation to each of those. There are other parties involved, as well as the court’s interest. As I have told the committee, the Government is looking at the steps that it can proactively take to enable as much of that material as possible to be made available to the committee, and I hope that that enables some to be made available.

12:45  

Okay. I am hoping that, as a consequence of your intervention, the committee will now see something. Whether that is a chronology or all the appropriate documents we will need to wait and see.

Do you believe that withholding documents, other than those that should naturally be redacted, would be an unacceptable level of secrecy on the part of the Scottish Government?

First, the member should not infer any particular level of involvement or non-involvement on my part, for the reasons that we have already discussed.

Indeed, that is secret too.

The Government has made clear its commitment to assisting the committee as fully as it can. The Deputy First Minister made it clear in his letter that the Government would take steps to enable the committee to have access to those particular documents; I think that he used the words “so far as possible”. The committee is well aware that there are constraints and other interests that have to be accommodated and properly taken into account, but you have the Deputy First Minister’s commitment in relation to those steps and I can confirm that they are being actively looked at.

I have a couple of small questions for the permanent secretary. You said that the cost of the litigation in relation to the settlement for the former First Minister was £512,000 or thereabouts. Can you tell us the total cost to the Scottish Government? I am thinking of things such as in-house lawyers, civil servants and senior counsel. If you do not have that figure to hand, I would be happy for you to write to the committee about it.

I do not have the figure to hand.

I suspected that it was a level of detail too far. Finally, I am conscious that you apologised to the committee for introducing an unlawful policy. Would you also like to apologise for costing the taxpayer an extraordinary amount of money?

I think that I have made my apology.

Thank you.

There is a short supplementary from Margaret Mitchell.

Picking up on Jackie Baillie’s point, we know that the Government can waive legal privilege. If a failed contest to a judicial review costing in excess of half a million pounds and dear knows how much more and a trial against a former First Minister involving the most powerful people in the land from the Lord Advocate to the permanent secretary and onwards do not constitute exceptional circumstances and sufficient public interest for legal privilege to be waived, what on earth does? This inquiry must be one of the most serious that Scotland and the Scottish Parliament have ever seen. What would trump the circumstances that we are looking at, Lord Advocate? It seems to me that the public interest is being denied the accountability that it should have.

First, there is nothing in the principles on which the Government deals with Parliament that prevents full accountability for the decisions that the Government took in this matter, any more than any other decision-making process or legal position that the Government adopts. That accountability does not depend on disclosure of internal legal advice or of which lawyer gave advice at which particular time. The Government can stand or fall on the position that it took in the judicial review and the committee can examine and test that. That is the first point: accountability can be secured without revelation of that material.

It is very important to recognise, certainly from my perspective, that there is no simple test in relation to the very unusual waiver of privilege. Waiver of privilege is something that would sometimes be politically convenient for ministers. However, all Governments of all political persuasions across the United Kingdom firmly hold to the importance of maintaining it, because it is part of a structure that—along with the responsibility of Government lawyers and, ultimately, with the law officers at the apex of that system—helps to ensure that Government properly absorbs legal considerations into its decision making on any issue, whether on a matter of policy or in the context of a litigation.

As I said earlier, particular pressures arise in the context of litigation and it would not be appropriate to take steps that would undermine the ability of the Government to seek and to obtain on the basis of absolute candour, internally or externally, the legal advice that it needs on any particular matter. Part of the reason for that is precisely to avoid the question of whether the Government has or has not taken legal advice—from whom and what the advice was—becoming a politicised issue in itself.

Are you trying to say to the committee that ministers explaining the legal advice is equivalent to the committee getting the advice that ministers might have decided to ignore?

The key point is that Governments are accountable, as they always are in Parliament, for the legal position that they take, which might—

Forgive me; I think that that was a yes-or-no question.

Well—

Is it the same thing? Ministers coming to explain legal advice is not the same thing as this committee seeing the legal advice, which ministers may or may not have ignored, is it?

With respect, it is not—

Even I, as a non-legal layperson, would not like to answer yes or no to that.

I am grateful, convener. I have tried to convey—it is perhaps my fault for not doing so—that the Government takes a legal position, either implicitly or explicitly, when it adopts a policy decision. Legal positions underpin policy decisions and the Government takes a legal position in a litigation, for which ministers are answerable and accountable: the court might tell them that they are wrong, or a parliamentary inquiry or Parliament more generally might test them on it.

The process by which the Government arrives at that legal position is a different thing. The courts routinely recognise the purpose and key importance of the legal professional privilege, the litigation privilege and the law officers’ convention in protecting the rule of law, the sound administration of justice and good government. Those doctrines protect the ability of the Government to seek and obtain on the basis of absolute candour the legal advice that it needs—perhaps competing advice, with different people expressing different views—to ultimately decide what its legal position should be and publicly stand or fall on that position.

Sorry—that has taken longer than answering yes or no, but I am afraid that that is my answer to the member’s question.

I would like to pick up on a couple of things before I wrap up the meeting. I know that the permanent secretary will look at some of the evidence that was given today and write to the committee with various details.

In relation to Maureen Watt’s questions, I draw the permanent secretary’s attention to the Government’s statement on the judicial review. She could refresh her memory of paragraph 32, which notes that

“Special Advisers”,

among others,

“were involved in aspects of this case.”

Not to prolong matters, but I think that Ms Watt’s question was particularly to do with the judicial review. Of course, if information that needs to come back to the committee includes the role of special advisers, we will certainly include it in our evidence.

I would appreciate that. Thank you.

Lord Advocate, all the way through this session, there has been reference to additional information that we hope will come from the Government, based on the Deputy First Minister’s letter, and the chronological list. You said to “the greatest extent possible”. Who defines what is the greatest extent possible, and therefore what this committee should now receive automatically?

On the convener’s previous point, it may well be that I will be looking at paragraph 32 corrected in relation to the role of special advisers. I am afraid that I cannot personally help the committee further on that question.

As the committee is aware, there are a number of constraints that need to be recognised, and I think that we all understand them. With regard to the production of court documents, the Government is proactively looking at how it can reveal as much of that material as possible. Those are the Deputy First Minister’s words—I cannot perhaps amplify on them. The particularities of the documents will have to be looked at against the range of restrictions and matters that need to be protected. I am not sure that I can elaborate further on that commitment.

One of the things that we have repeatedly requested is a list of the documents that the Government holds. Surely that is something that could be given to us along with the chronology.

I am perhaps not the person who is best able to answer precisely what issues there may or may not be with providing particular lists. I could see that questions might arise simply from the identification of a document, but I cannot trespass across one or more of the boundaries that have been set by the committee and by other factors in the inquiry. Whether that is the case is not something that I can answer, but it may be that the Government can write further on that specific issue.

Perhaps the permanent secretary might like to respond to that last point, bearing in mind that this committee has been extremely careful with what is published in terms of redactions, and has in fact been more stringent in its redactions in publication than the Government has been in the publication of its freedom of information requests.

I would say that we have been equally careful about how we have redacted material. We have looked very carefully at making sure that we are not overly cautious but are responsible and disciplined in our redaction. I do not think that there is anything else that I can add with regard to the release of documents.

What about the list of documents that the Government holds?

I would need to be advised about whether release is possible. If, in legal terms, it is possible, I am happy to do that.

Thank you very much.

I thank the Lord Advocate and the permanent secretary for their attendance today. I think that it was the Lord Advocate who used the words “exploratory session”. Further on in this aspect of our inquiry, the committee will make a decision about who will be invited to give evidence.

That concludes the public evidence session, and we will now move into private session.

12:58 Meeting continued in private until 13:29.