Official Report 422KB pdf
We move to item 2, which is the continuation of our evidence-taking session with the First Minister, Alex Salmond MSP. First Minister, I welcome you to the meeting and thank you for your attendance. We will move straight to questions, and I will give members who did not get a chance to ask questions at the previous meeting the opportunity to lead the questioning this morning.
Good morning, Mr Salmond.
Good morning, Patricia.
I understand that in the days leading up to the call-in, you took advice from the chief planner. Was all that advice given over the telephone, or was any of it put down in writing?
It was given over the telephone. On Thursday 29 November, the date of the meeting of Aberdeenshire Council's infrastructure services committee, I asked for advice from the chief planner—in fact, the advice came from David Ferguson, as the chief planner was at a conference in Germany—on whether I was able to meet the Trump Organization as a constituency MSP. I had known hitherto that I was able to do that, because I had received that advice very early on in my term as First Minister and knew what the ministerial code said. However, I sought advice that day because I was not certain whether things had changed as a result of the infrastructure services committee's decision. The advice that I received from David Ferguson was that, as the ministerial code makes clear, I was free to pursue my role as a constituency MSP. I subsequently received a short phone call from Jim Mackinnon in Germany, in which he reiterated the same advice.
Did you at that time seek advice from the permanent secretary Sir John Elvidge about your dual roles?
No, but the advice was consistent with what I had previously been told. As we discussed at last week's meeting, once you are excluded from planning decisions under the ministerial code, you are basically free to pursue all your duties and responsibilities as a constituency MSP. The one caveat was that I was advised not to make any public statements. The ministerial code does not actually say that you should not do so; it says that you should do so only in unavoidable circumstances and that you should make it clear that you are representing your electorate's views. However, I decided that, throughout all this, I should take a precautionary approach, as it were, and not make any public statements.
Given that that advice had been reiterated on more than one occasion and given that this matter had been raised in Parliament, were you at all anxious about attending as First Minister the press conference at St Andrew's house to talk about the Trump application? Did you see any difficulty there, and, if so, were you given any advice about your status at that event?
Yes, I was given advice by the permanent secretary. I wanted to check that I could do that, and the advice was that I could because I would be talking about the 54 parliamentary questions on the subject that had been answered, and as First Minister, I would be able to defend and explain my Administration's record. The permanent secretary said that, under those circumstances, it was perfectly in order to hold the press conference in St Andrew's house. That was on 20 December, after the questions had been answered.
I believe that there are still a number of outstanding freedom of information inquiries. I am sure that Mr Swinney will deal with those in the fullness of time.
It did not cause me any anxiety, but I sought advice from the permanent secretary to see whether it was in order to hold the event, and I was told that it was because I would be explaining the statement and answers that had been given by Mr Swinney on behalf of the Government. Before those answers were given, it would have been difficult for me to hold such a press conference because I would have had nothing to defend or explain, or any knowledge of the parliamentary questions that were answered.
Last week, Mr Swinney and the chief planner alluded to their concerns about the perception of the planning application and Aberdeenshire Council's decision, and the signal that it sent out to the rest of the world. Were you concerned that there could be confusion over your dual roles?
I take a strong view on that. I have decided that, for every question that I answer, every letter that I write, every meeting that I attend and every telephone call that I make, I articulate my responsibilities as a minister and as a constituency member of the Scottish Parliament. I checked up on the number of letters and e-mails that I have had on this subject—it is 959. I have brought along examples of how they are answered. I can redact them suitably to take names out, if the committee so wishes.
After the decision of the infrastructure services committee of Aberdeenshire Council, did you, as a constituency MSP, make any comment on your view of that decision?
I have never commented on the merits of the case. I have said—I said this in the Scottish Parliament the following week—that it seemed to me better that a decision of such magnitude should go to the full council. In fact, if I remember correctly, I was invited to say so by Lewis Macdonald. It seemed unusual that a decision of such importance would be taken by a committee. However, I have never commented on the merits of the Trump application while I have been First Minister in any public or, indeed, private meeting.
Therefore, following the decision, the comments that were attributed to you in the newspapers—albeit without names being attached to the quotes—in which it was said that you might be furious about the decision are precisely that: ill-informed comment.
I have never told any journalist my view of the merits of the application. Indeed, I have refused to discuss the merits of the application with journalists because I took a precautionary view on the matter. I am pretty certain that no direct quote has ever been attributed to me that says whether I was for or against the application.
I have a small point to make. It is heartening for the committee to know, as it is for the wider public, that interest in the development is not just party political or centred in Edinburgh and that you have had 950 declarations one way or the other—for or against, I suppose. That justifies the committee's interest in the matter.
I accept what you are saying. However, it is important to understand that the ministerial code talks about two types of minister. Until I read the document fully and many times, I accept that, prior to becoming a minister, I did not fully appreciate that.
Does Patrick Harvie want to pursue that point—but only that point?
I would be grateful for the chance to ask a brief supplementary on that point, convener. Thank you.
I do not think that anyone should do anything that is seen to be prejudicial, but of course—
So that certainly applies to you.
If you look at the section that is headed "Planning Cases: The Planning Minister", the first thing that it says might be viewed as being prejudicial is
Forgive me. I am asking whether the requirement to do
The ministerial code does not specify the First Minister. It talks about ministers and constituency interests.
Good morning, Mr Salmond. I take you back to the calls that were made on 3 and 4 December regarding the chief planner. Were you present when the Trump representatives called Jim Mackinnon to request a meeting?
I called Jim Mackinnon at the end of the meeting that I had in the Marcliffe hotel on 3 December with the Trump Organization. I asked him, in a reversal of what I had asked him a few days previously, whether it was permissible for him or somebody from his department to meet the Trump Organization. He said that it was permissible as long as what was discussed was not the merits of the case but the procedures and timescales. On that basis, I handed the phone to George Sorial, who then requested and arranged the meeting.
So we are clear that you were in the room. You made that call and handed the phone to the Trump representatives. Did you speak to them afterwards to confirm Mr Mackinnon's agreement to the meeting?
No. I spoke to Jim Mackinnon and asked him if he could meet. He said that he could. I handed the phone to George Sorial, who requested the meeting, and the conversation finished. It was a very brief phone call.
A very brief phone call—that is quite possibly true, First Minister, but what possible purpose could there have been to making that call if it was not to influence the subsequent actions? The organisation had access to highly trained and qualified advisers who know basic and often detailed information about the Scottish planning process. Therefore, it did not need to meet Mr Mackinnon.
The justification is twofold. First, at the meeting, but also in a statement that the Trump Organization issued, it said that it had been advised to seek meetings with me as the constituency MSP and also with the Government planners. It said that in a statement on 16 December 2007. Although the meeting that I had with the Trump Organization dwelt largely on the possibilities—[Interruption.]
I appreciate that frankness, Mr Salmond. Some of the processes that were involved seem extremely odd. Do you accept that the only interpretation of your telephone call to the chief planner is that it was to influence him to take a meeting to influence the course of events?
Last week, the chief planner went through a substantial list of people from whom he has taken telephone calls. I understand that the chief planner is at Rosyth waterfront today with Mrs Helen Eadie pursuing her constituency interest. There was absolutely nothing untoward or difficult about asking the chief planner if it was permissible for him to meet Trump Organization representatives at that stage.
Therefore, by trying to meddle in the decision rather than stay above matters as the First Minister, you could have endangered the whole process by leaving the decision-making process wide open to challenge. Do you accept that?
There are two things wrong with that. I do not accept the word "meddling". I am a constituency member of the Scottish Parliament and I was pursuing a legitimate constituency interest, as I hope you would do in similar circumstances. Secondly, I was there as a constituency member of Parliament, not as First Minister—the reason why I was there is that I am a constituency member of the Scottish Parliament. I do not accept for a second that that should be described by anyone, least of all another member of the Parliament, as meddling. We must defend our rights to act on behalf of our constituents in the best traditions of being a member of Parliament.
I appreciate the fact that you have taken the time to come back to the committee. I want to consider perception, which you will accept is important. All MSPs sometimes have difficulty clarifying for our constituents issues such as the limitations of our roles. You say that you took a precautionary view. Did you make any public statement on the planning application before you became an MSP?
I was asked that by—I think—Mr McLetchie last week. I said that the Trump application came up at a public hustings in Inverurie during the election campaign. All the candidates were asked about the issue and I answered the question. I said that I was in favour of the development with certain caveats, and I raised some issues.
I do not dispute that, but the point is that it would in that case be incredible to imagine that John Swinney, as the minister responsible for planning, did not know that you were in favour of the application.
I do not know what John Swinney knew or did not know. I know that I have never spoken to John Swinney about the merits of the case.
There were 62 conditions.
Thank you for that correction. The Formartine area committee attached many conditions. It was voting on outline planning permission, which should be borne in mind when we are talking about people expressing attitudes that are sometimes characterised as being either for or against the application.
You took a precautionary view. We know that, sometimes, people have difficulty understanding our various roles. You said that you got clarification that you were able to meet representatives of the Trump Organization and use your ministerial car. Last week, you bristled somewhat when I suggested that there was an issue about your judgment. I suggest that there is a distinction between whether you are able to do something and whether it is wise to do it.
I hope that I did not "bristle" last week, Johann. I picked you up on your words because you characterised this committee's inquiry—twice, I think—as being an investigation into my conduct. I merely point out that that is not, as the convener can confirm, within the terms of reference that the committee sent me. I was informed that the committee is inquiring into transparency in Government decision making. I was not bristling; I was merely pointing out what the terms of reference are.
There is an issue about judgment in relation to perception and the matter being open to judicial review. I am interested in knowing whether, given the controversy surrounding the meeting, you have reflected since then on whether it was wise.
You are wrong in all three parts of the question. First, I met representatives of the Trump Organization because they requested a meeting. They did so several times in a few days. The first request was made to my constituency office on the Thursday afternoon.
You may not have known that the application was to be called in, but you knew that a solution was needed. It is hard to imagine that your reaction to what had occurred and your willingness to meet representatives of the Trump Organization, in spite of how others might perceive that and even though it opened up the risk of judicial review, were not related in part to your position as First Minister and to your wanting to respond to the challenge by an American organisation—last week Mr Swinney told us that he needed to be briefed because the issue was live in the American media—that Scotland was "not open for business". If that were not the case, you might have taken the precautionary approach of advising the Trump Organization on the phone to speak to the chief planner on the phone.
The reason for the meeting was that the Trump Organization requested a meeting. It could be argued that to refuse a meeting in those circumstances would not be in line with the "Code of Conduct for Members of the Scottish Parliament", by which we are all bound. That code tells members that they must be accessible to their constituents. I would be dumbfounded if, after being asked for a meeting in such circumstances, an MSP were not prepared to proceed with one.
A number of members have mentioned perception, and you have mentioned your correspondence a couple of times. Will you give us an indication of what would be a regular reply—I do not suggest a standard reply—to all that correspondence?
I am prepared to offer that to the committee if that is considered to be appropriate. I have brought along two basic responses because, as the constituency MSP, I obviously get letters and e-mails from constituents, but I also got letters and e-mails from everybody else in Scotland and beyond. There are templates for responses to both, unless there is something specific in a letter that would recommend its being passed on to appropriate ministers. I have brought the templates along—the key point is the clarification that they give to people writing in as regards the respective roles of constituency MSP and First Minister.
You mentioned how the situation developed over time. Was that reflected in the response that was given? Once the application became a matter for John Swinney, did you have to change the way that you responded, or was the same form of words adequate?
The vast majority of the 959 responses, excepting only—let us say—12 or 20, have been given since the end of November. Although the matter is of substantial interest locally, nationally and—arguably—internationally, it had not provoked any great deluge of correspondence to me until the decision was made by the infrastructure services committee. Until that point, people believed that it was moving its way through the proper processes of consideration. It was only when it came to a logjam, or car crash, that there was a sizeable interest and a deluge of correspondence. The templates are really based on what I said afterwards, but there is no material difference between those and the dozen or so letters that I sent before the end of November. They were all sent after John Swinney had taken on the role as the planning minister.
Clearly, you are not responsible for the oddity of the planning process in Aberdeenshire, but did people raise with you the issue of a perceived oddity or unusualness in the process that Aberdeenshire was pursuing?
It was certainly something that was raised with me in Parliament—by Lewis Macdonald, on 6 December. If you look at that reply, I say that most councils, and most people, believe that decisions of such significance should go before a full council meeting, but Aberdeenshire had adopted its own procedure. Later, of course, on 12 December it changed that procedure.
I should formally respond to the offer that you have made on several occasions to provide copies of correspondence, including e-mails, to the committee. We would welcome your doing so; indeed, we would welcome any available paper trail—involving e-mails, briefings, and exchanges with ministers, for example—that relates to the decision-making process. We hope that you will also share with us information on whether a judicial review has been considered and the legal advice that you have received, which are issues that have been going around.
I have received no legal advice about a judicial review. However, I know from evidence to the committee that Aberdeenshire Council sought legal advice. The legal basis on which the Government took decisions has been made clear to Parliament. Therefore, that has been covered in evidence.
I take up your offer to pass on information, and of course—
I can pass on the letters today, convener.
Absolutely. However, we are interested in the paper trail in general rather than in only one section of it.
Good morning, First Minister. At last week's committee meeting, much was made—as it has been at this meeting—of whether using the ministerial car was appropriate. You took advice on using that car; its use was deemed to be both appropriate and pragmatic. Some committee members may deem your buying an all-day bus ticket for travelling around Gordon as a constituency MSP to be more appropriate, but I would like to explore a bit more the relationship between your being a constituency MSP and First Minister.
I confess that, in my parliamentary career, I have been tempted to pass on certain constituency cases to list MSPs, but I have always resisted the temptation to do so, unless the constituent expressed the view that I should. Indeed, I have just provided a constituent, at that gentleman's request, with a comprehensive list of the names, addresses, and office and Scottish Parliament phone numbers of every constituency and list MSP in North East Scotland. However, if a constituency MSP is asked to attend a meeting on a very important topic that affects their constituency, they have a responsibility to respond to that request. Constituency MSPs have such responsibilities. I do not think that a constituency MSP can hand over to a list MSP responsibility for a matter if it is clearly the duty and responsibility of that constituency MSP to deal with it.
I have one further question. If the infrastructure services committee had taken the converse decision to approve the Trump development, and you had been contacted by objectors, would you have met them just as speedily? If they had sought access to the chief planner, would you as constituency MSP for Gordon have made a telephone call on their behalf?
Yes, I would. I met objectors to the proposal timeously, although at that time there was not the same urgency because of the point that had been reached in the process. I met them on Friday 19 October before the meeting of the Formartine area committee. I met them in good time for that meeting because they wanted specifically to talk about the processes of Aberdeenshire Council.
Good morning, First Minister. Last week, in his opening statement, the chief planner, Mr Mackinnon, said with reference to his telephone conversations with you on 29 and 30 November:
That is correct. I have thought quite a lot about that. It is certainly true that Jim Mackinnon's conversation with me on 30 November was about what he had learned about the Aberdeenshire Council processes.
Do you not find it slightly surprising that the Government's chief planner, when briefing you on the procedural options, managed to omit any reference to the course of action that he eventually followed? He subsequently told the committee:
No. When Jim Mackinnon gave evidence at last week's meeting, I think he argued that he thought about the matter over the weekend, so perhaps it is not surprising that he did not refer to the call-in option on 29 and 30 November, as that was before the weekend.
On the people who knew that call-in was an option, Mr Swinney claimed in his evidence last week that he knew about the option in advance of his two five-minute telephone conversations with Mr Mackinnon before he took the decision. We also learned from Mr Mackinnon's evidence last week that the Trump Organization had engaged a very expert planning lawyer from Dundas & Wilson and Mr Mackinnon assured us that the Trump Organization's legal representatives certainly knew that call-in was an option. You might not have known that it was an option, but two crucial people certainly did know that it was, yet it was apparently not part of your conversation. I will move on to something else.
David—
You may reply to my factual observation.
Briefly, First Minister.
Just out of interest, would David McLetchie have known that call-in was an option?
No—I would not have known that. I would know that it was generally possible to call in an application, but I would not know, because I do not have the expertise, that it was possible to call in the application in the little gap between making the decision and signing the letter, which is why I expressed surprise that Mr Swinney claimed such legal knowledge that he apparently knew that such a call-in was possible.
Yes—I have had such an opportunity and I will certainly elaborate on my answer. It has been pointed out to me that, on 4 December, my civil service official spokesperson told a briefing after a Cabinet meeting that he had no knowledge of my meeting the Trump Organization.
Is that Mr Geoghan?
Yes—that is Mr Geoghan. I did not know about that until yesterday, but that is as it should be, because he was answering for me as First Minister. He had no knowledge that I had met the Trump Organization on the previous day as a constituency member of the Scottish Parliament. I believe that that was explained to the journalist concerned the next week and was perfectly accepted. The note of that subsequent briefing says that the First Minister's official spokesman
We have heard about Mr Geoghan's position. Has Jennifer Dempsey, who I believe is one of your special advisers, ever denied in response to press inquiries that you had such a meeting?
Not to my knowledge. In fact, this e-mail correspondence is based on a request made to Jennifer Dempsey by Mr David Ewen of the Evening Express.
I am talking about prior inquiries, not the inquiry by Mr Ewen.
Not to my knowledge.
Would you like to verify that with Ms Dempsey and confirm that to the committee?
I certainly will, but I should point out that this is what I knew about when I spoke to the committee last week.
I appreciate that. Ms Dempsey, one of your special advisers, is the author of the correspondence with Mr Ewen of the Evening Express. However, the meeting was conducted in your capacity as constituency MSP. Why is the special adviser to the First Minister issuing statements to the press on meetings that you have in your capacity as constituency MSP, not as First Minister?
She asked me what to do about the request; she is, after all, a spokesperson for me.
Can I just—
No, I am sorry. Other members want to get in, and I would like to pursue that issue myself.
Yes, in so far as it goes. I have put other things into that position, such as explaining the ministerial code and what it allows a constituency MSP to do when they are also a minister. I do not disagree with anything that you have said, but I have said other things as well.
I will take that as a yes.
No. The bounden duty to which I referred is that of a constituency MSP to respond to a constituency interest. That is how I regard that duty. The duty of the First Minister does not lie in the terms of the ministerial code or the parliamentary code. For example, my predecessor was criticised for this, but we should not get ourselves into the situation where the First Minister or the economic minister is not regarded as having the responsibility to generally promote Scotland's economic development. During last week's evidence session, I was rather taken with the sharp contrast that was drawn by the chief planner between the activities of the First Minister for Scotland and the response to them, and those of the First Minister for Northern Ireland. That is something we have to think about.
Thankfully we are not in Northern Ireland; we are dealing with this problem here. Your earlier evidence would seem to indicate that you agree that, as a minister, you are less free to act and become involved in live planning applications.
It is not quite like that. Because the constituency MSP is excluded from the planning decision-making process, he is more free to act than a minister who would be involved in the decision-making process. In my view, that is the correct reading of the ministerial code. Because an MSP is excluded from the planning process, they are more free to act than a minister would be. In short—I described this last week and I stand by it—the ministerial code says that once a minister is excluded from the decision-making process, they are basically free to do what a normal constituency MSP would do, with the one caveat that it is suggested that they should be careful about their public statements.
So there are clear differences between being an MSP and being a minister. I appreciate your answer.
I involved myself in that planning application by making inquiries about it because I was written to by a cross-party group of members of the Scottish Parliament. I can furnish the committee with the letters and correspondence. Not only was I written to, I was buttonholed by a number of those members in the chamber and asked to reply to their letters as a matter of urgency. That is what I did.
Do you see becoming involved in live planning applications as part of your role?
Responding to MSP queries, as I did in the Aviemore highland resort matter, was perfectly proper and above board and I would hope that any First Minister would do that.
How do you see yourself having a role in live planning applications? Does someone have to write to you as First Minister, or pass a letter on? Is it only when MSPs ask you? Is it through having a quick chat in the corridor? What criteria determine when you get involved?
The constituency MSP—
We are talking about your role as a minister.
I am coming to that. A constituency MSP who is also a minister is bound by the ministerial code, but I believe that they also have a duty to represent their constituents. If any MSP writes to me about a matter that is causing them enormous concern, I would hope that I would reply to them timeously and help them if I possibly can. Certainly, if MSPs asked me to get involved in an issue, that would be an occasion when I would have to get involved. If we did not do that, the whole process of ministerial meetings and MSPs writing to ministers would be rendered redundant.
Big questions have arisen to do with your involvement in some organisation, and you have answered those questions as a constituency MSP, but we are considering your role as First Minister in the light of the ministerial code. You have not answered the questions on the criteria that determine how you would get involved.
Convener, with respect, I have said that one criterion would be—
We just drop you a line and have a chat, and you become involved in live planning applications.
I would not express it as you have done, but thank you for helping me. I would express it as follows: if I am the constituency MSP, I have a bounden duty. That is for the reasons that I have already stated. As First Minister, I have a duty—like any minister—to respond to MSPs who ask questions. That is perfectly legitimate and has been done very many times by ministers. It would be shocking if ministers did not respond to MSPs' queries. There is a general duty within the context and the confines of the ministerial code that must be followed. Scottish ministers should be promoting the best interests of the country, as long as they stay within the requirements of the ministerial code—which are there for a purpose.
There are certainly some questions to answer, although we may not have time to pursue them. You became involved in a live planning application in Aviemore and you spoke to the chief planner on 7 December about Aviemore. What did you say to him?
I can certainly help the committee by answering that. I asked the chief planner about the status of the application and when it was coming up. I asked him for information so that I could answer my correspondence with MSPs.
The Aviemore question was one of those that were included in John Swinney's statement and your statement; a list of questions were answered at that point. Did you ask the chief planner to do anything as a result of the conversation at Aviemore?
I was not aware that you were going to pursue the Aviemore question, but I certainly kept within the ministerial code in all dealings. I asked the chief planner for information on the status of the Aviemore application and I asked him about the relevant bodies. I did that so that I could reply to the MSPs who had asked. Anything that I have done about Aviemore or anywhere else stayed exactly within the confines of the ministerial code.
Did the chief planner speak to any other of the statutory consultees? Did he speak to the national park planning authority about the application? Did he update you on those discussions?
I think that you had better ask the chief planner those questions. If you wish to put any questions about this or any other matter to me, I will be happy to assist you. However, you will understand that I have come along to an evidence session about the Trump matter. Had you given me notice that you wanted to ask these questions, I would have had the information available. I want to be exact in all replies to the committee. I therefore suggest that you send the questions on Aviemore to us. We shall answer you as best we can. However, I give you an absolute assurance that anything that I have done in relation to Aviemore will have been perfectly in line with the ministerial code and with what I am entitled to do as First Minister in response to queries from constituency MSPs on a cross-party basis.
First Minister, I think that you should be expressing disappointment to the people who prepared your brief and not expressing disappointment about the questions that you are being asked.
I have certainly not spoken—but, who is the principal developer?
Mr Donald Macdonald. I thought you would have known that.
I have spoken to Mr Donald Macdonald in the past, but I have not spoken to him for some time—certainly not since I received the letters from the constituency MSPs. I know that you do not want to conduct a series of hearings on all planning applications, but if you ask a series of questions, you will get a series of answers. Anything that I have done has been within the terms of the ministerial code.
I understand that it may be difficult for you to answer the questions that we are asking this morning, because you have moved from the position of asserting that, on Trump, you acted only as a constituency MSP to admitting that you have intervened in another live planning application in your role as First Minister.
I am not admitting anything of the sort. On the Trump application, I have done my job as a constituency MSP and was not involved in the decision-making process. On Aviemore, although I am not the minister with responsibility for planning, I acted as First Minister in response to letters that I received from a cross-party delegation of MSPs. Everything that I have done on that application is certainly within the terms of the ministerial code. If the committee sends us a letter on the matter, that will be explained to it. I have done absolutely nothing that I hope any First Minister or minister would not have done in the same circumstances at the request of MSPs. One of the criteria for ministers responding is that MSPs have asked them to do so. That is exactly what ministers are doing.
I have a question about procedure. Are we planning to extend the remit of this agenda item, the timeframe for it, or both?
We are seeking to establish whether the process has been damaged. We are considering related issues in the planning process and whether ministers are prepared to intervene in live planning applications. Today the First Minister has indicated that he contacted the chief planner regarding the Aviemore proposal and that he may have spoken to the developer. Something very similar happened in relation to the Trump application, which we are investigating. The issue of Aviemore was also raised in the questions attached to the statement that Mr Salmond, the First Minister, and John Swinney, the Cabinet Secretary for Finance and Sustainable Growth, delivered at their press conference. It is mentioned in our briefing papers and we are entitled to ask questions about it.
I will respond in a number of ways. First, I am entitled to speak to the chief planner to request information on a planning application when constituency MSPs ask me to do so.
We shall see. If we have achieved nothing else in the hours of evidence that we have taken, we have shown that MSPs do not need to speak to the First Minister to gain access to the chief planner. I wonder why they did not exercise that right in this case. There are questions that need to be answered in relation to the planning process for the Trump and Aviemore applications.
This morning you have spoken a lot about the precautionary principle. Was your considered approach influenced in any way by the way in which the previous Deputy First Minister and the previous Scottish Executive handled relations in respect of the Aberdeen western peripheral route?
I know about the western peripheral route issue, which illustrates how public comment is sometimes a difficulty for ministers. When I received advice that it was best not to make public comment, I understood why that advice should be held to and that is what I have done throughout the process. That was my precautionary approach.
At the end of the previous evidence-taking session, I asked about the implications of this affair for the planning system. I will pursue that now. Mr Swinney told us that his first objective in making the decision that he did was to preserve the
On the second aspect of your question, it is for the planning minister to decide on the way forward.
Rather than speculating about hypothetical appeals that it is already known were not being thought about by the developer, I have another question. Someone has mentioned the ministerial code just about every five minutes in this discussion. If a complaint were made under the ministerial code about your conduct, albeit that you might disagree with the basis of that complaint, it is clear that you would be the wrong person to determine the outcome of the complaint. Does not this whole affair underline the importance of independent scrutiny and independent application of the ministerial code by someone outside Government and, preferably, party politics?
There are two things to say. I am considering the ministerial code at the moment and nothing that I say to you, Patrick, should prejudice what I will recommend about it. It is true that I am the arbiter of ministers' conduct. It is also true that the code that we have here is basically the ministerial code that we inherited—almost sentence for sentence—from Westminster. There have recently been changes to the Westminster ministerial code—I am looking at them to understand exactly what they mean—and there has been some controversy about whether the changes to that code actually reflect what people said.
Good morning, Mr Salmond. I return to what seems to be the central issue: the question whether you and your actions were clearly divorced from the ministerial decision-making process and whether or not you exercised appropriate or inappropriate influence, or exercised no influence at all. We know that you were publicly in favour of the application, because you said so at an election meeting. We know that you facilitated the meeting that the Trump people had with the chief planner, because you have said so this morning. We know that, within an hour of that meeting, the Cabinet Secretary for Finance and Sustainable Growth made the decision to call in the planning application.
On your first point, let us be clear that the public statement in Inverurie was before the election and before the application of the ministerial code. If we applied a rule that people cannot make public statements if they think that they might become a minister at some point in the future, I suspect that none of you around the table would be making public statements on anything. At each stage in the process, I made it my business to find out what I was and was not entitled to do and what others were entitled to do. I sought advice at each stage.
My apologies, Mr Salmond, but you have told us all this before. I asked you a specific question.
I am coming to the other bit. Secondly, I sought advice on whether I could meet my constituency interest, which I was told I could, even under the circumstances of 29 November. Thirdly, I phoned Jim Mackinnon to find out whether he, as chief planner, was able to meet the Trump Organization to talk about processes and timescales, as he put it—but not about the merits of the case. In each case, the answer that I got was what I did. I did those things because I am a constituency MSP and I wanted to fulfil my duty to assist my constituents. I also assisted people who were objecting to the application. The matter of assisting people and doing one's job is not necessarily related to the matter of one's own opinions on the issue.
I do not want to be difficult but, with respect, that did not answer the question. I asked what you were seeking to do when you had that contact with the chief planner. By facilitating the meeting, were you seeking to influence what then took place?
No.
You were effectively saying, "I am Alex Salmond. Can I set up a meeting with you?" There would have been an implication that you wanted something to result from the meeting.
First, the meeting at the Marcliffe hotel was requested by the Trump Organization. My request to Jim Mackinnon and David Ferguson was whether, under the circumstances, I could go to that meeting.
I am sorry to interrupt, but you said to the committee earlier that, having set up the arrangements to start with, you handed the telephone to the Trump people. The meeting was legitimate.
Let me try again. I asked Jim Mackinnon whether it was possible, under the circumstances, for him or somebody from the planning directorate to meet the Trump Organization. He said that it was. I then handed the telephone to George Sorial, who made arrangements for the meeting. The reason for the phone call was that the representatives from the Trump Organization said that they wished to meet the planners, just as they had wished to meet me.
I am clear about that, but equally I am clear that a major international corporation with a battery of lawyers and consultants is capable of setting up a meeting with the chief planner, whom they have met on many occasions. I suggest that the real story is that you are the First Minister of Scotland, you told the Trump people that you would sort out the unfortunate situation created by the Aberdeenshire difficulties and that, expressly or by implication, the telephone calls to the chief planner carried a clear message that Scotland's chief honcho—you—wanted action; action that an ordinary back bencher would not have the leverage to get. Is that not the real position?
No. It is not the real position, and no doubt Mrs Helen Eadie, in her meeting today with the chief planner about the Rosyth development, would not regard her actions as a constituency MSP as in any way difficult either. That is not the position. I was acting as a constituency MSP. I was acting in a way that confirmed that I was able to and could do what I would hope any MSP would do under the circumstances. Since Mr McLetchie rather expertly asked about it, let me reiterate that when we had the meeting in the Marcliffe hotel, I had no knowledge that call-in was an option. I was concentrating on what I thought were the processes that needed to be explained to my constituents, about the likelihood of Aberdeenshire Council being able to pursue a meeting of the council or indeed the appeal procedure.
I accept that. I think half of Scotland was not aware that call-in was an option. I want to be clear about something else. You previously made a great play of telling the committee that you could allegedly do a variety of things under the ministerial code, including making the electorate's views known, writing to the minister and leading deputations. Am I clear that you did not write to the minister or lead any deputations and that all that you did was to contact the chief planner? Is that the position?
It is true that the only contact that I had with the planning minister was, first, when he told me that he, and not Stewart Stevenson, was going to act as planning minister and secondly, when he told me that the application was being called in. I was trying to illustrate the range of things that are possible under the ministerial code in order to underline to the committee that there was a variety of things that I could have done—
None of which you did.
Well, yes. The things that I could have done go far beyond the actions that I did take. I suppose that the answer to that is that I was pursing my role in a very precautionary way.
Paragraph 6.10 of the ministerial code states:
As the chief planner illustrated to the committee last week, a variety of MSPs contacted—
But where does the code say that you can do that?
It is the right of any MSP to contact officials. What is in the code makes it clear—
Forgive me, but where in the code?
Robert, the code does not specify that a minister can contact the chief planner because it is understood that it is the right of any MSP to do so. As we found out last week, many MSPs have done that. The code clarifies the fact that more public events are possible for a constituency MSP who is also a minister if they are excluded from the decision. That is the point. The code specifies the range of freedoms that an MSP has.
I have a final question. We also identified with you the fact that there is a distinct difference between making the electorate's views known and making the views of the Trump Organization known in this context. In retrospect, do you take the view that the whole series of events, seen together by an independent outside observer, could be said to have tainted the process and, therefore, imperilled the decision, preventing which problem is the central point of the ministerial code?
No, I do not. I take the view that, throughout the process, I have taken a precautionary approach. I have applied the ministerial code exactly and have interpreted it in a precautionary way. I have withheld from doing many things that the ministerial code says that I am entitled to do—a point that you helpfully made. I have not made public statements—apart from once. It would not have been difficult, given the electorate's views on the matter, to make a range of public statements under the terms of the ministerial code. I chose not to do that and I was advised not to do that because I am the First Minister and because I took a precautionary approach throughout.
The trouble is that the Scottish Government's representatives denied the fact that the Trump Organization representatives were present at the meeting in the first place—that had to be dragged out of them. On reflection, does that not cause you some concern?
You pursued the matter last week with Mr Swinney, who explained well the circumstances of that misapprehension. You will see him again and can ask the question again.
Perception is all, they say. There has been concern about remarks in the press last week that were attributed to you, First Minister. I note for the record that this committee has not considered the evidence or a report and that that is the committee's job and not the job of the First Minister or his press officers.
What are you talking about?
You cannot presume to know our view of the evidence that has been given to us. We have not had a chance to examine it, or to produce a draft report. Committee members were concerned about press statements last week about what the committee's view would be. I put it on the record that we have not completed our job and that there may be further evidence to take. We will evaluate all the evidence before coming to the report, which will, at the end of the day, express the committee's view—not Duncan McNeil's or Alex Salmond's view.
Meeting suspended.
On resuming—
We resume agenda item 2. John Swinney, Cabinet Secretary for Finance and Sustainable Growth, is with us to continue with his evidence session.
Before we kick off, I must raise something. We have had chronic overruns last week and this week. I think that an appalling discourtesy has been shown to the people whom we have invited to give evidence, both today and last week. The cabinet secretary has been kept waiting more than 45 minutes, despite the fact that, as the First Minister made clear, he has an engagement in Ayrshire. The session overran by some 45 minutes.
Do you have a question?
The question is, will we hold to the one hour that the cabinet secretary has been allotted? Apart from anything else, he has to lead on the budget debate this afternoon. To many of us, that is a lot more important and significant than the "How many angels can dance on the head of a pin?" stuff that we have heard this morning.
You have expressed your view; you have used up even more of the cabinet secretary's time this morning. The cabinet secretary and the First Minister gave us notice that their time would be constrained. The First Minister indicated that last Thursday. We were told by the cabinet secretary's private office that he had no external commitments of which it was aware, although he had heavy parliamentary commitments. That was the case until Friday afternoon.
I would like to make a small point.
If you insist, but I do not intend—
The First Minister's time is clearly very constrained, and I presume that that is why he is still outside talking to the press rather than going to his very pressing engagement.
I think that we should proceed.
Good morning, Mr Swinney. We heard last week from Mr Mackinnon—the point was alluded to earlier by the First Minister—that a concern over the way in which the planning application was dealt with was that, had there been an appeal by the Trump Organization, Aberdeenshire Council might have received a bill for what Mr Mackinnon described as
If we are talking about costs being awarded against a local authority because of its stance in a planning inquiry, or because it had not been able to support its reasons for refusing an application in the way described in the circular on appeals expenses, I am pretty certain that such circumstances have arisen before. I recall one case, although it is not recent, in Perth and Kinross Council.
Such things have happened in a number of cases, Mr McLetchie, but I will come back to you with a more specific and detailed reply if that would be helpful.
Have people been billed hundreds of thousands of pounds?
We can give you that information. As we all know, planning inquiries can be pretty expensive affairs once the lawyers get started, Mr McLetchie.
Indeed they are expensive.
Is the "matter" that you are asking about the possibility of liability falling on Aberdeenshire council tax payers?
From expenses.
Mr Mackinnon told me that a sub-committee of Aberdeenshire Council had expressed one opinion, but that it was likely that the council in plenary would support the planning application. That likelihood was subsequently confirmed by the decisions of the council on 12 December. Mr Mackinnon explained that the council could be facing in two directions, which could raise real issues about the integrity of the planning system. It was possible that, at an appeal hearing, the Trump Organization would turn up to argue in favour of the application, and that Aberdeenshire Council would also turn up to argue in favour of the application.
I do not quite understand this. We have heard how the pen was poised over the decision letter and how that was one of the reasons for the great rushed decision. My understanding is that, with any decision letter on a planning application, the applicant is entitled to be informed of the decision and the reasons for refusal. Clearly, the officials at Aberdeenshire Council would have been perfectly capable of constructing a decision letter that notified the Trump Organization of the decision and the reasons for refusal. Had the Trump Organization appealed against the decision, the reasons for refusal would have already been set out on the record. What is the problem here?
That is all absolutely correct, Mr McLetchie.
Indeed it is.
But if the Trump Organization had appealed, the consideration of that appeal might have meant a public local inquiry involving—as everyone who is sufficiently well versed in this case will know—a multiplicity of parties and players. What would Aberdeenshire Council have said at that inquiry?
We will come to that.
Under the terms of the circular, the council has to be able to
I will tell you how. First, the council had articulated its reason for refusal, which instead of being advocated enthusiastically could have simply been tabled at an inquiry. Because the Trump application was in conflict not only with the structure plan but with many other plans, there was ample reason to refuse it. Indeed, on the face of it, there would have been no difficulty in formally justifying such a move.
Your question is predicated on the assumption that immediately after Aberdeenshire Council had issued the decision notice the Trump Organization would have decided to appeal before the supplementary meeting was scheduled to take place. I cannot quite recall, but I am pretty sure that the special meeting of the council had been requisitioned on Monday 3 December. Indeed, I have in my folder a statement from the leader of Aberdeenshire Council—to which I believe the First Minister has also referred—making it expressly clear that she would do everything in her power to keep the application alive.
That could not have happened. Had the decision letter been signed—we are told that the pen was poised and ready to sign it—call-in would not have been a legal option. Mr Trump could then only have appealed. Had that happened—
We went round these houses last week.
Yes, and it is true.
I do not dispute the point that, once the decision letter is issued, that is it—call-in is not an option. I have absolutely no issue with that. My point is that, once the decision letter was issued, Aberdeenshire Council would still have been perfectly able to take the stance at its requisitioned meeting on 12 December that it supported the application. That would have created a scenario in which Aberdeenshire Council would have been pointing in two directions.
You say that. But I say to you—
Please, convener. I want to—
David McLetchie can come back in after John Swinney has finished.
Thank you, convener.
We have heard that Aberdeenshire Council got its legal opinion from senior counsel on 5 December that the decision of the infrastructure services committee was final. Prior notice of that was communicated to Mr Mackinnon, the chief planner, on 4 December. Had the decision letter been signed and sent off on 4 or 5 December, Mr Trump would only have been able to appeal, and that would have been against a backcloth of the chief executive of Aberdeenshire Council having in his hand a written opinion stating that the decision of the infrastructure services committee was, in effect, the final decision that could be taken and that, as a planning authority, Aberdeenshire Council had no further decision-making interest in the matter. That was a perfectly possible scenario.
That is an opinion; it is not a proven fact. Clearly, you can substantiate that opinion; however, I have a completely different opinion.
The difference is that my opinion was not formed by two five-minute telephone conversations on a major planning application, whereas your decision was made after two five-minute telephone conversations and before all the matters that I have just outlined were properly considered by you.
My decision was made on the basis that unless I made that decision, there was a serious risk that further damage would be done to the integrity of the planning system because of the way in which the application was then likely to proceed.
There is certainly a divergence of views on that issue.
Good morning, Mr Swinney. You will be glad to know that we will not ask you too many questions today because we got part way through our questions in the evidence-taking session last week. Thank you for coming back this week to complete your evidence.
It is perfectly possible for ministers to consider issues without seeing everything on paper. I say with the greatest of understatement that I could do with seeing a little less paper than I currently see every day. Much more could be done without putting everything to paper, not least to lessen the environmental impact. It was not particularly unusual that I did not have a piece of paper in front of me on which to base my judgment. I was perfectly able to have discussions with the chief planner, understand the issues that he set out to me and the points that were being considered. It was not particularly exceptional.
Do you not think that the extensive meddling of the First Minister and the Trump officials with the planning officials made it all the more likely that an application might fall victim to judicial review?
There are two points to make on that, Mr Tolson. The first is that no such practices as you describe were involved. Secondly, it is clear that there is an absolutely secure legal basis for the decision that I arrived at on 4 December. I am enormously confident in the decision that I took.
The decision that you took was on the matter itself. What might be under question, however, is the propriety of how the whole matter was handled. How come, for example, the answer given to parliamentary question S3W-7699 stated that there had been two phone calls when in fact there had been three? There have been several inconsistencies—even abrasiveness—now that the truth is known about the calls made between Alan Campbell and Jim Mackinnon on 4 December.
I apologise, convener, that this will be a long answer. Let us go through the sequence of events. On 13 December, the First Minister was asked by Mr Nicol Stephen at First Minister's questions about two phone calls between the chief planner and the chief executive of Aberdeenshire Council. So there we have Mr Nicol Stephen alleging that there had been two phone calls and not the three that we now know was the case. Mr Stephen's informants cannot have been terribly accurate about the information that they gave him.
But that information had to be dragged out by this committee.
I will answer your question fully, Mr Tolson, if you will pay me the courtesy of not interrupting me as I go through the sequence of events. On the occasion when the First Minister was asked about the telephone calls, he had no knowledge of the issues because in that particular situation he was the MSP for Gordon and had no right to know of the content of those answers. It was one of those scenarios that I used to pull all the time at First Minister's questions—you pull out of the hat an issue about which the First Minister is unlikely to know the details and then you crow about the fact that the First Minister does not know the details. It is an old trick that can be well deployed—although not particularly well these days. So, if I get my dates right, it was on 13 December that the phone calls first came to light.
We appreciate your coming back to the committee today.
The planning application was called in for the reason that was stated in the call-in letter that Mr Ferguson issued on my behalf. As I stated last week, the call-in letter said that the Scottish ministers gave the direction in view of
So it was because the planning system was in meltdown and its integrity stood to be damaged, but at no stage in your explanation of 20 December was that argument deployed.
What was deployed on 20 December was not an argument; it was a statement of facts. In my statement of facts on 20 December, I made it clear that the application had been called in because it raised issues of national significance. That is the call-in direction that Mr Ferguson issued on my behalf. What I said at last week's committee meeting was intended to give the context of the thinking behind the decision to call in the application and the reasons for the timing of it.
If the integrity of the planning system was going to be called into question by the process that Aberdeenshire Council initiated, that would have been known to you, as somebody who understands the planning system. You would also have known that you could have called in the application before a decision was made. Given that the planning system was going to be used, why was the call-in not made before the decision was made by the council?
Yes, I follow what you are saying.
If there was a ramshackle system in Aberdeenshire Council that was going to lead to a difficulty—to challenges from taxpayers—why was the application not called in at an earlier stage?
The problem was that we ended up in a situation in which one sub-committee of Aberdeenshire Council said yes, another sub-committee said no, and the overwhelming majority of councillors on Aberdeenshire Council requisitioned a special meeting to take a decision—which they have, subsequently, taken—to endorse the planning application in principle. That is not a scenario that we expected.
Everybody accepts that the decision was virtually unique. I am not saying that it was not legal. In those circumstances, it is remarkable that the arguments that you now deploy were not deployed on 20 December. It is understandable therefore that people perhaps thought that what was in question was not the process that was used but the decision that was reached.
Obviously, that point of view could be advanced if individuals wanted to advance it. In my view, I was acting to exercise my powers, as the planning minister in this case, to call in an application when I had the legal right to do so. I did so on the basis that the call-in was because the application raised issues of national significance. I was mindful of a context and driven by a timing factor. I thought that the planning system was in danger of falling into disrepute because of the contradictory positions being adopted within Aberdeenshire Council.
You called in the application on the basis that the integrity of the planning system was under threat, but that was not deployed as an argument on 20 December—so people's perception was that the council must have come to the wrong decision. Were you given advice on whether such a decision would have an implication for other applications that had been decided by Aberdeenshire Council? There may have been consequences, for example that those other applications that had been determined under the same planning process by the council—which has now been characterised as having damaged the integrity of the planning system as a whole—might have made the council liable to judicial review.
I am not familiar with all cases determined by Aberdeenshire Council, but it is unlikely that a motion would be passed at the full council to say that the council should support an application that a sub-committee—for example the infrastructure services committee—had turned down. That is the crucial point that I am trying to get across.
As the planning minister, you will know that planning authorities make decisions on planning issues and do not simply express an opinion. There is a very different test to be applied to councils on that basis. You cannot presume that a planning authority will take any particular view. As you will know from the recent planning legislation, we were clear that local authorities ought not to take a corporate view on planning issues.
I do not see how a local authority could fail to take a corporate view on a planning application. It must, because it has to determine that planning application.
No, it has to make its decision on the basis of planning merit. It cannot say, "We would quite like that to happen," and then vote for it to happen if it is contrary to all planning legislation.
Okay. I misunderstood your use of the word corporate.
You did not receive advice to suggest that the process that was used for the application—call-in—might have implications for other applications that were determined under the system and might subject the local authority to judicial review on those applications?
The crucial point that that analysis ignores is the fact that in no other scenario has Aberdeenshire Council come to a view that it should support an application when that view is contrary to that of a sub-committee.
That is entirely speculative.
Johann Lamont infers that the council is not allowed to do that. The council decided at its meeting on 12 December to support the application. We are in exactly the scenario that I suspected we would end up being in.
But that was as a consultee—
I am sorry, but we have to move on.
In answer to your first question, the decision of 12 December has status only in so far as Aberdeenshire is a consultee in the determination of the planning application. However, I go back to my exchange with Mr McLetchie a few moments ago. I was concerned about the council taking a different view and facing in two directions during any form of inquiry or process in relation to the determination of the application.
The council decision gave a strong signal to the developer, as did the actions of the Scottish Government, to prevent the developer from walking away. I understand that. Some clarity was required about the decision.
Your second question was about the call-in. The committee will know that Stewart Stevenson is the minister responsible for planning, but I decided to take the responsibilities in this case. I did that because Stewart Stevenson's constituency is close to the Menie estate. I felt that my decision was the right way of ensuring an appropriate distance in the consideration of the application.
So, you were the planning minister from 25 October?
Yes.
And you had never previously handled a call-in. This was the first.
Yes, but—
That is fine.
But I want to give you some further information. As part of my responsibilities as Cabinet Secretary for Finance and Sustainable Growth, I have two particular areas of interest in planning activity. First, obviously, I carry Cabinet responsibility for the planning portfolio, which means that I have to be well versed in the contents of the planning portfolio. Secondly, it was envisaged that there would be circumstances in which I would act as the planning minister. During the process of becoming familiar with all areas and aspects of my powers and responsibilities, I have become aware of the powers and the duties that are involved with my potential role as the planning minister.
Just to recap, you took over direct responsibility on 25 October—
For this case.
Yes. It was your first call-in. You came to your decision based on two five-minute telephone calls, without a paper trail. To take the point that Mr McLetchie made, would it not have been wise, given that you had some time in hand and were relatively inexperienced in this area, to reflect over that 24-hour period before you made a decision that was unprecedented, in planning terms, in Scotland?
We can all lay heavy emphasis on words such as "unprecedented". Things must happen to create precedent; events take their course and precedent is created—that is where precedent comes from. I do not take your view, convener. I think that it is important that ministers exercise their responsibilities wisely and after due consideration. I had ample opportunity to think about the issues involved in the planning application and to discuss them with the chief planner. I came to my decision in that context.
Much has been made of how many phone calls you had or what lay behind the decision to call in. Can you comment on the extent of the official advice that you got, particularly in light of evidence from the chief planner in which he indicated that the decision was at least partly driven by his concern to protect the planning process? He also mentioned some of his experience of planning law in the area, with the example of, I think, Ikea in Midlothian. To what extent did you have confidence in the advice that came as part of the call-in process?
I am confident in the advice that I get from the chief planner, as I am with the advice that I get on a variety of questions. The chief planner marshalled an explanation last week, in front of the committee, of his experience of dealing with planning applications and issues over a career stretching across, I think, 33 years in public service, with a number of years as chief planner. I know from members who were ministers in previous Administrations the degree to which they valued, as I value, the quality and integrity of the chief planner's advice. That was obviously a factor in my mind when I considered the advice that I received from the chief planner, so I had enormous confidence in the quality of that advice. That does not mean to say that I agree with him all the time.
Do you feel that he was under pressure to provide the advice that you wanted to hear?
Well, I did not tell him what I wanted to hear. I wanted the chief planner to explain to me what the situation was and what options were available to us in the context of the concern, as I expressed to the committee last week, that there was considerable danger of the planning system being brought into disrepute.
Hello again, Mr Swinney. Last week, Mr Campbell from Aberdeenshire Council took us through the entire process as it occurred, as far as he was concerned as the chief executive of Aberdeenshire Council. His explanation of the situation was that the infrastructure services committee's decision was effectively, as things stood, the final decision that Aberdeenshire Council could take on the planning application, but a number of councillors and others made representations to say that they were unhappy or uncomfortable with that decision. As a result, he sought legal advice as to the way forward and what other remedies were open to Aberdeenshire Council. He indicated to Mr Mackinnon on 3 and 4 December that the advice that would be presented to him on 5 December would be that there was nothing further that Aberdeenshire Council could do, but the call-in by the Scottish ministers meant that, at the meeting on 12 December, the council could, as a consultee, indicate that it was in favour of the planning application. Is that your understanding of the events?
I have no reason to dispute Alan Campbell's account of the sequence of events in relation to Aberdeenshire Council. Obviously, I am not a member of the council and I have no particular locus in what it was going through at that time. I am absolutely confident that there was nothing to stop Aberdeenshire Council resolving that it supported the Trump application, even once the infrastructure services committee had made its decision and once the decision notice had been issued—leading to the situation of the council facing in both directions at an appeal.
Mr Campbell was at pains to make clear to us that that was not possible.
Not possible? It is completely possible. Even if the Aberdeenshire Council infrastructure services committee takes a decision to refuse the application and issues a decision notice, nothing stops the council passing a motion in support of the Trump application.
But not as a planning authority.
No, not as a planning authority; rather, as a consultee—but not just as a consultee. As a self-governing independent entity, Aberdeenshire Council can say that it supports the Trump application for the Menie estate.
But it would be as a planning authority that the council would make its representations, were the Trump Organization to appeal the decision.
There is nothing to stop Aberdeenshire Council making a representation. Imagine that, in the course of a debate for costs at a planning inquiry, the advocate for the Trump group is able to say that it is entitled to get expenses because Aberdeenshire Council said that it supported the application. That is the real situation that Mr Mackinnon was painting last week.
The point is that the council was not the planning authority. Anything it said would, in a sense, be just the comment of a body of people who happened to have a particular role. That is the germane point.
You suggest that the council's comments were just the opinion of a group of people. It is not a village hall committee; it is Aberdeenshire Council. If it passed a resolution saying that it supported the Trump application at the Menie estate, that would have material influence on the debate about the awarding of expenses and costs in a planning inquiry. I cannot see how it would be otherwise.
As Mr McLetchie indicated, the advice that the council got from its efficient and effective chief executive might have given it cause to consider whether that would have been appropriate. I think it unlikely that, sitting as a committee, it would have gone against that advice. However, I am speculating—perhaps in the way that you have speculated about what the outcome might be.
No.
No more so far?
No more so far—but I cannot rule it out.
Indeed. Did you personally advise Mr Stevenson that you were taking that course of action?
I did.
Did you advise him that you had taken the decision to call in the application?
I did.
When did you do that?
I cannot recall exactly, but it would have been on 4 December, I would think.
Would you have done that by way of a minute, or by a telephone conversation?
I would have done it personally or by telephone. I would certainly have done it orally.
Presumably after Cabinet.
I would imagine so, yes.
Indeed.
There is a perception and there is a problem for you as the cabinet secretary in relation to planning, Mr Swinney. It seems only fair that I put that to you and ask you to respond. The Trump Organization has said today that it knows that the First Minister was in favour of the application. The First Minister says that he made an announcement, or answered a question, in Inverurie. Is it your position that you did not know what the First Minister's view on the application was? Does that not test our credulity, given that you are clearly a confidant of the First Minister? Indeed, I understand that the First Minister regards you as his favourite minister.
I assure you that it does not feel like that sometimes.
Absolutely. I am genuinely not making a facetious point; I am talking about perception and imperilling the decision. Given the situation, it would be reasonable for somebody from outside to say that as Alex Salmond has publicly commented on the subject and his very good colleague, who said when he called in the application that it was because it was a national development, now says that it was to ensure the planning system's integrity, which sounds like post hoc rationalisation, the challenge that you faced was that the First Minister wanted the proposal but the local authority had refused it and the Trump people had said, "We will not appeal."
There is a lot in there. First, it was news to me that the First Minister had ever commented on the issue. The Inverurie public meeting—
You did not know about that?
I say honestly that I did not know about the Inverurie public meeting—I had absolutely no idea about it. When I heard the First Minister refer to it last week, that was news to me, as I assumed that he had never said anything about the matter, because I had never heard him say anything about it, because of all that he had asserted after the election and because I knew with certainty that he had never said anything as the First Minister, as he could not say anything in that role. The Inverurie thing was complete news to me.
The issue concerns perception. I am talking about making your decision open to judicial review. I will put it another way. Do you think that Alex Salmond's meeting the Trump people in Aberdeenshire, phoning the chief planner while they were there and handing the phone to them helped or hindered the public perception that the decision is entirely separate from him and that you will be under no pressure?
I have been absolutely clear throughout that a person is one thing or the other—they are either the MSP for Gordon or the First Minister, but they are not both. That distinction is at the heart of the point. If the argument is advanced that when someone becomes the First Minister they cannot articulate a constituency interest, nothing stops the First Minister being involved in the decision-making process, but he is out of the decision-making process because he is the MSP for Gordon. To me, that is the choice. People must consider whether the system works on that basis. I have never felt any doubt that, when it comes to the issue that we are considering, Alex Salmond is the MSP for Gordon, not the First Minister of Scotland.
But both of you were ministers for Scotland when Trump said that Scotland was not open for business, and you had to react to that.
People must accept that, in ministerial activity, it is possible to set boundaries and to think, "I am exercising certain functions in a particular fashion that is expressed clearly in the ministerial code, which distinguishes between an individual's role as an MSP representing a constituency and their role as a minister exercising ministerial responsibility." I am clear that in such scenarios you cannot be both, whether you are Alex Salmond, John Swinney or Stewart Stevenson.
I do not know as much as some people do about the planning process but, ultimately, if judicial review came about, would not its role, or one of its roles, be to examine the integrity of the process?
The judicial review process in our legal system entitles individuals to test the appropriateness of decisions.
Have you received any advice from your department about the circumstances in which a judicial review to examine the decisions might come about?
I do not make this point to be in any way difficult or evasive but, in answer to a parliamentary question, I have made it clear that the Government does not disclose whether it has or has not received legal advice. That is not a new position of the Administration—it has been the position of all Administrations. I cannot give you the reference, but that point is in an answer to a parliamentary question.
I have seen that answer, but there was a slight difference—I do not know whether it set a precedent—when the First Minister sought legal advice over a treaty with Libya and asked the Parliament whether he could make a statement on it. That action seems to have changed the prevailing situation.
I can simply say what is in my response to S3W-7679 from Jackie Baillie. My answer states:
You made the point about the long-standing precedent that we do not discuss legal advice. I am asking you to accept that the situation changed when the First Minister sought legal advice on the treaty with Libya and asked to make a statement in Parliament about it.
I am not familiar with the details of the legal advice in relation to the Libyan question.
I think that you were sitting beside the First Minister when he made his statement.
I say, respectfully, that that is an issue for the First Minister, not for me.
I accept that difficult and complex decisions had to be made on some aspects of the planning application. There should have been two considerations for you: whether to use the call-in process, which was unprecedented but which some people knew about, including you, you say, despite your relatively limited tenure in office; and whether the decision-making process might be challengeable. You must be careful not to subject your ministerial actions to unnecessary challenge. Do you accept that, at the point of decision on 4 December, those were the two considerations to which you had to have regard?
I would characterise my considerations on 4 December as being about whether I had the power to act in that situation and, if I had that power, whether it was appropriate for me to exercise it.
Did you exercise it reasonably, in a way that would not be subject to challenge?
That was my second consideration.
The matter is part planning issue—the issue of the call-in, which might have legal overtones—and part judicial review, which also has legal overtones. You said that you do not comment on whether you receive legal advice. My recollection is that the Scottish Government would not usually reveal what the legal advice was, but it was not quite so coy about whether it had taken legal advice. I am subject to correction on that, of course. Before you made your decision on 4 December, after the two five-minute conversations, was any advice given to you or—to your knowledge—to the planners other than that from Mr Mackinnon?
The only advice that I got on the matter was from Mr Mackinnon. That is all that I can say in answer to your question.
I have a question about the ministerial code. So far, the emphasis has been on Mr Salmond's actions, but there is a section in the code on the planning minister's duties. We have agreed that you were the planning minister at the relevant time. Paragraph 6.1 refers to "Action"—action by the planning minister—
Are you referring to paragraph 6.11?
Yes. It also mentions the action of
The chief planner must be in a position to advise ministers on a range of questions. He made it clear in his evidence that he was in touch with Aberdeenshire Council. I recall pretty firmly that Aberdeenshire Council sent him a copy of the papers about the application that were going to the relevant committees. Those papers capture the arguments for and against the development and all the relevant considerations. The chief planner would have been in receipt of those papers so he was in a position to be well acquainted with the issues involved.
Do you know what inquiries Sir John Elvidge made before he arrived at that conclusion?
If I know Sir John, he will have undertaken vigorous inquiries before putting pen to paper and writing such a letter to me.
I return to the balance of decision. I might have put this question to you last time. If the planning minister receives papers from a council relating to an appeal, or indeed to a call-in before a decision is made by the council, it would be even-handed—there would be no perception that the minister had a view one way or the other about the matter. That is not quite the case once the council has made a decision, because there is then an impression, at least at first glance, that ministers are unhappy with the decision and that there is an element of bias in their movements.
No, because if you follow the logic of what I have said and what has happened, Aberdeenshire Council has now endorsed the Trump application and thinks that it should go ahead. That is its stated opinion on the issue.
Perception is all, as a number of people have said during this inquiry. I have made the point about the call-in and the decision.
I would dispute it because, as I said in my response to Johann Lamont, I had no knowledge of the Inverurie declaration—if I can give it such significance in history. We all use such terminology.
You know about it now.
Please let me finish.
Can I ask one more question?
It is your last one.
I appreciate that I have taken up the committee's time.
I have listened to your questions with great interest, Mr Brown. It strikes me that a lot of thought over the past couple of days has gone into producing sound bites for the questions. Obviously, more than five minutes of thinking was involved.
I thank Mr Swinney for the courtesy of his replies to me.
You have described your enthusiasm for your job, cabinet secretary, and the great interest that you take in it. In your answer to parliamentary written question S3W-7671, on the live planning application for the Macdonald Aviemore Highland Resort, you admitted that the First Minister had taken an interest in that application and had spoken to the chief planner. Before you signed off that answer, did you discuss the conversation that the First Minister had with the chief planner? Did you speak to your Minister for Transport, Infrastructure and Climate Change, Stewart Stevenson, about his involvement in that before you signed off the answer? Did you have any discussions with those people about the First Minister's role and what discussions he had with your junior minister and the chief planner?
No, I did not. In gathering information for the answer, it would have been discussed between me and my officials, principally Mr Ferguson and a number of his colleagues. Obviously—
You signed off that answer, which admitted that the First Minister had taken an active interest in a live planning application. You have just told us that you are enthusiastic about your job and take a great interest in it, but you signed off that answer without asking your officials about the background to the First Minister's involvement and what discussions he had had with the junior minister or the chief planner.
Excuse me, convener, I just said that I discussed the information with my officials who prepared the information for me, upon which I approved the answer's wording.
Did you speak to the chief planner?
With the greatest of respect, convener, I think it is unfair of you not to reflect properly the words that I have put on the official record.
I asked a straight question and I expected a straight answer.
And I gave it to you.
I asked you whether you have had discussions with Stewart Stevenson on the Aviemore development—have you or have you not?
No, I have not had discussions with Stewart Stevenson on Aviemore.
Have you discussed that issue with the chief planner?
No, I have not.
You admitted that the chief planner spoke to the First Minister, but you never asked the chief planner what they discussed or asked whether that was proper. What advice did you get from your officials when you signed off that answer?
I would get with that a background note that explains the detail that underpins all those discussions, to some of which I was party. I would be party to the discussion on the national planning framework. I was party to the discussion on the Forth replacement crossing. I was not party to the discussion on Aviemore.
So you felt it completely appropriate that the First Minister, in his ministerial role, should have an active involvement in a live planning application, despite the ministerial code?
I think it probably was appropriate, bearing in mind the fact that on 19 December the First Minister responded to a letter about the Macdonald Aviemore Highland Resort Ltd from a gentleman called Danny Alexander MP, whose address is the House of Commons and who had written to the First Minister on the subject on 11 December. The First Minister was also responding to a letter from a lady called Rhoda Grant MSP, who represents the Highlands and Islands. The First Minister also replied to a letter from a lady called Mary Scanlon MSP on the subject. I think, therefore, in terms of—
Why did he not just refer them to the chief planner and explain that it would be inappropriate, given the ministerial code, for him, as the First Minister, to intervene directly in a live planning application? The area is not in his constituency and he never consulted anyone—that seems to be the way we get to the chief planner on a live planning application.
I have no idea where you are going with this, convener.
There are serious questions that need to be answered. We may have to take the First Minister's advice and write to him with those questions. Okay?
Perhaps you will. What is crystal clear is that the First Minister received letters from a Liberal Democrat MP for the constituency, a Labour MSP and a Conservative MSP, and he did those members the courtesy of giving them a response and ensuring that the concerns that they expressed to him were being properly addressed by the Government. I do not think that that is in any way an unreasonable—
And you believe that it is consistent with the ministerial code that the First Minister should seek a meeting with the chief planner about a live planning application?
Yes.
You do—well, we will examine that.
He did not seek a meeting; he sought an update on the progress of the application in order to ensure that he could properly address the concerns that were drawn to his attention by members of the Westminster and Scottish Parliaments. I think that that is an entirely reasonable thing for the First Minister to do.
Certainly questions remain unanswered. Thank you for your attendance here this morning; we appreciate your giving your time.
Meeting suspended.
On resuming—
Next
“Firm Foundations”