Fraser Inquiry (BBC Tapes)
The next item of business is a debate on motion S2M-1117, in the name of David McLetchie, on the failure of the BBC to hand over tapes to the Fraser inquiry, together with two amendments to the motion.
Further to the point of order that I tried to raise five minutes ago, Presiding Officer, I believe that there is a question over the final three and a half lines of the amendment in the name of Fergus Ewing. They do not seem to be to do with the subject of the debate. They might have some tenuous link to the Fraser inquiry, but they have no link to the thrust of the debate. Is it in order for the amendment to be accepted for debate?
The glib answer would be that the amendment has been selected and so, by definition, it is in order. However, allow me to expand on that a little bit. I am grateful to the member for having given notice of his point of order.
Twice.
I refer the member to the business bulletin. His point seems to arise from the type that is in bold, which is the summary of the subject of the debate as prepared by the chamber desk. If the member reads the motion—and it is to a motion that amendments must be attached—he will find that it is relatively broad. It would be fair to say that everything that the SNP amendment encompasses touches on the Holyrood project procurement policy and the Holyrood inquiry. That might be disputable, but the amendment is perfectly competent.
Agreed.
I am not entirely grateful for your agreement, Mr Ewing.
The motion that we are debating is designed to achieve an objective that we all share: the release by the BBC of the tapes or transcripts of the interviews with our late First Minister, Donald Dewar, and the Holyrood architect, Enric Miralles, that were conducted for the documentary, "The Gathering Place". If we are all agreed on that objective, the debate should be about the means that we should use to achieve that end. Let us not forget that the reason for debating the motion at all is the continuing refusal of the BBC over a period of six months to provide the Fraser inquiry with unconditional access to the Dewar and Miralles interviews.
It is not as if the BBC is standing on a clear principle. Its producer guidelines say:
"Occasionally the BBC will allow a viewing or a taking away without any legal order because of a clear public interest which poses no danger to the BBC, its staff, or its future ability to operate freely."
So what is the BBC's problem? Apparently, the BBC wants to give Lord Fraser an edited version of the interviews in order to protect third parties. Quite rightly, the Fraser inquiry has rejected that, because it is not for the BBC to act as a censor of information given to the Fraser inquiry. What is relevant is for the inquiry to judge, not the BBC.
Will the member take an intervention?
I will come to the intervention in a moment. The interests of third parties who might be named in the interviews would be fully protected, because they would have an opportunity to give further evidence if necessary.
Our position is straightforward. The motion is competent; were it not, it would not have been accepted for debate. If it is passed, the BBC will be required to comply, and the content of the interviews will be brought within the public domain for consideration by the Parliament. Voting for the motion will achieve the desired result.
I had hoped that other parties would be able to support the motion and achieve a measure of consensus. I should have known better. In grubbing around for excuses to avoid doing what is right, the amendments of both Robert Brown and Fergus Ewing adopt the spurious line that the motion is an attack on the freedom of the press or the independence of the BBC.
Does David McLetchie have any knowledge of whether Lord Fraser has written to the Presiding Officer requesting the assistance of the Parliament concerning the BBC tapes? Has he or has he not written?
I am not aware of such correspondence, but I know that at the inquiry not three weeks ago Lord Fraser made that very suggestion to Mr Ewing. I also know that Lord Fraser's spokesman welcomed the motion that we have lodged for debate today.
Will the member give way?
I would like to move on to the freedom of the press.
I am trying to be helpful.
I know, but I cannot take an intervention.
The argument about freedom of the press is nonsense. Freedom of the press is an essential bulwark of civil liberties but, unlike societies with totalitarian regimes, ours is a democratic society based on the rule of law, in which Government's power is limited. That means that all of us—including the Government—operate within the framework of the law and that laws apply equally to us all. The legal imperative in our motion, which requires the BBC to hand over the tapes, is based firmly on the powers granted to the Parliament by section 23 of the Scotland Act 1998. Those are powers that belong to the Parliament, not to the Executive. They are clearly limited, because they can be used only to aid the investigation and scrutiny of matters of public interest within the responsibility of the Executive.
No one would dispute that discovering the truth about Holyrood is a matter of profound public interest and importance. Our motion does not grant wide discretionary powers and is not arbitrary, oppressive or capricious. It seeks simply to use the powers at our disposal for a highly specific purpose—to deal with what John McCormick, controller of BBC Scotland, said on television last night are the unique circumstances in which we find ourselves following the sad and premature deaths of Donald Dewar and Enric Miralles. The motion does not undermine the independence of the BBC, but simply requires the early release of information that the corporation intends to broadcast anyway.
Will the member give way?
I will not.
I find it ironic that the Executive amendment is in the name of a Liberal Democrat. Liberal Democrats have been the strongest champions of freedom of information laws, but apparently they want to exempt the BBC from any requirement, however modest, to provide information to a public inquiry that is clearly in the public interest.
On a point of order, Presiding Officer. Mr McLetchie indicated that there was an Executive amendment before the chamber. That is not the case. There is an amendment in my name, as an individual parliamentarian. I take great offence to the suggestion that the amendment is not in my name.
That correction could have been made later. It was not necessary to interrupt the speech. Continue, Mr McLetchie.
May I have more time for that, Presiding Officer?
No.
This is absolutely ridiculous.
The SNP amendment introduces other arguments. SNP members would like us all to write nice letters to the BBC requesting politely that the tapes be handed over. Everyone has been doing that for the past six months. Fergus Ewing should wake up and smell the roses—the BBC has said no and the auntie is not for turning.
We are now told that we must reconstitute the inquiry under the Tribunals of Inquiry (Evidence) Act 1921, so that it can compel evidence to be given. That takes us back to square one—it is a sledgehammer to crack a nut. What is the point of doing that when we can achieve the same result today? For a party that is always lecturing us about the powers of the Parliament, the SNP seems remarkably reluctant to use one that we already have by supporting the motion.
That brings me to the First Minister's position. I do not accept the criticism of the First Minister that is implicit in the SNP amendment. The First Minister and the Scottish Executive deserve credit for the level of co-operation that they have given to the Fraser inquiry. However, on this matter the First Minister is failing to give the support that Lord Fraser has requested and that the First Minister has repeatedly promised. Lord Fraser has made his views on the matter absolutely clear. He believes that the tapes are vital to the inquiry and is looking to the Parliament to help him in that respect. Furthermore, the inquiry has welcomed our motion. If the motion is not agreed to, Mr McConnell and any other member who votes against it must answer the following question: how will we ensure that the interviews are put into the public domain?
The motion is about the authority of the Parliament and the First Minister. That is why today's vote is important. We are in the unusual business of proving Jack McConnell right. He said repeatedly that the Fraser inquiry had enough powers but that, if necessary, the Parliament could use its powers to back up the inquiry. Today the Parliament has an opportunity to do just that. We might be a new Parliament and a young Parliament, but it is time to be a grown-up Parliament.
I agree with the First Minister that we should go down the section 23 route only for exceptional reasons and in exceptional circumstances. However, there are exceptional reasons and we are in exceptional circumstances—of that there is no doubt.
The public demands answers and the public interest must be paramount. We face the acid test of the Parliament and we must pass it. If we do not, we will have failed not only ourselves, but the Fraser inquiry and, most important of all, the Scottish people.
I move,
That the Parliament agrees that the Holyrood Project has a significant contribution to make to the built environment in Scotland and should provide important lessons for future public procurement policy; notes that the report of the Holyrood Inquiry being conducted by The Rt Hon The Lord Fraser of Carmyllie QC, when presented to the Parliament, will be submitted to an appropriate Parliamentary committee for additional scrutiny and may thereafter be the subject of a full debate or debates in the Parliament; believes that consideration of the Holyrood Inquiry report and the public policy issues arising therefrom which are the general responsibility of the Scottish Executive would be enhanced if members had available to them recordings or transcripts of interviews given by the late Donald Dewar and Snr Enric Miralles to the production company, Wark Clements, in the making of the programme entitled "The Gathering Place", which documents are in the custody or under the control of the British Broadcasting Corporation having its principal place of business in Scotland at Broadcasting House, Queen Margaret Drive, Glasgow G12 8DG, and accordingly requires the British Broadcasting Corporation in terms of section 23 of the Scotland Act 1998 to deliver such documents to the Clerk of the Parliament in accordance with instructions to be given by him in terms of section 24 of said Act.
I call Fergus Ewing to speak to and move amendment S2M-1117.2.
On a point of order, Presiding Officer. Is it in order, in a debate of such immense importance, that no representative of the Executive is present on the front bench?
If Mr Gallie is able to refer to any relevant section of standing orders, I will consider that to be a point of order. At the moment, it is clearly a debating point.
I call Fergus Ewing.
On a point of order, Presiding Officer. I regret to have to say this, but there might well be a reason for ministers to be present, which is that Scottish ministers have a general responsibility for the Fraser inquiry.
That does not make it a point of order. We are now burning up time that members had hoped to use to make speeches. I suggest that it would be sensible for us to get on with the debate.
At the third time of asking, I call Mr Ewing.
We all agree that no single issue in the short life of this new institution has done more damage to it than that of the Holyrood project. If that is true, I hope that the various political parties also agree that the inquiry is crucial to moving on. I say that whether or not we want to rehabilitate devolution or, as the SNP does, move forward to proper self-government and independence. If that is true, it is essential that the inquiry be seen to produce a report that is sound. Anything that undermines its credibility or that justifiably erodes confidence in its process must be attacked and opposed by Parliament.
No one has been more vigorous or persistent in asking that the BBC co-operate by handing over its tapes than my party and I. We have pursued the matter doggedly. I have presented 50 pages of evidence to the Fraser inquiry and more documents than anyone here would probably care to read.
On 29 October 2003 I raised a point of order to ask whether the procedure that the Tories propose could be effective. The Presiding Officer wrote to me—it was not a formal ruling—and stated that sections 23 and 24 of the Scotland Act 1998 were not intended to allow the provision of documents to a third party; they were intended for us to properly conduct our proceedings in relation to matters for which the Executive has general responsibility.
It is clear that the Tories' attempt is a contrivance, a ruse and a mechanism to make up for a basic and straightforward failure. That failure was identified repeatedly by Bill Aitken when the First Minister announced the formation of the inquiry—the inquiry lacks the powers to compel the appearance of witnesses or the production of documents under the Tribunals of Inquiry (Evidence) Act 1921. I commend the 1921 act to anyone who enjoys reading clear prose. It is because the inquiry does not have the power to force a recalcitrant witness to co-operate that we are where we are.
There is a more fundamental reason why we do not support the Tories' proposal. No one argues more vociferously than I that the BBC is wrong. Indeed, I believe that it is fundamentally wrong—and I will return to that subject in a second. However, it is a fundamental principle of democracy that Parliaments do not act as pinstriped bovver boys who push around independent media and broadcasting corporations, even—and perhaps particularly—when we all think that they are wrong.
Will the member give way?
No, the member has had quite a lot of time.
If the Tories seek to present themselves as bastions of freedom of information, I should refer them to the Zircon affair, when they sent the police into the BBC to raid the files and tapes that related to that matter. Ironically, the Solicitor General at that time was one Peter Fraser.
The BBC's position is extremely inconsistent. Indeed, I made that serious charge on "Newsnight Scotland" on 29 October 2003. The corporation began by arguing that guarantees had been provided, with the implication that they applied to every interviewee. However, on that same day, when I asked the Presiding Officer whether that was true, he said:
"I have to say … I was given no guarantees, nor was I asked about the subsequent use of the footage."—[Official Report, 29 October 2003; c 2635.]
The impression given was misleading. After I pointed that out on "Newsnight Scotland", I received a vitriolic letter from a Mr Ian Small of the BBC, which is on the Holyrood inquiry website if anyone wants to read it.
The BBC is on shaky ground; its position is untenable and unjustified. However, in conclusion, I suggest two alternatives. First, we should not simply ask the BBC to hand over the tapes, but all party leaders should combine in a delegation and go to the BBC chiefs. [Interruption.] That is democracy. The Conservatives might want to send in the police and the bovver boys, but we do things rather differently in a democracy.
Secondly, because the key omission is the lack of properly constituted powers, we should explore the ability to provide the inquiry with those powers. Ironically, under the Scotland Act 1998, the Parliament does not even have the legal powers to do that. We would have to ask Westminster to use its powers in that respect. However, under the current system, we are where we are. I have suggested the way ahead; that is what we should do and indeed is what I will be doing. We should not abandon every principle concerning the freedom of the press that we in a democracy stand for—or should stand for. Instead, we should pursue things correctly. That is what we in the SNP are calling for and what we shall be doing.
I move amendment S2M-1117.2, to leave out from "agrees" to end and insert:
"believes that, whilst it is wholly inappropriate for any parliament to issue orders to the press and media requiring them to hand over material, the BBC should cooperate with the Holyrood Inquiry by providing to it the tape recordings of the interviews with the late Donald Dewar and Enric Miralles, which have been filmed for the proposed programme, "The Gathering Place", because they may include material of relevance to the remit of the Holyrood Inquiry; further believes that the Holyrood Inquiry should have had conferred upon it at the outset the powers to compel the appearance of witnesses and production of documents set out in the Tribunals of Inquiry (Evidence) Act 1921; considers that the First Minister and the Presiding Officer should now explore whether such powers can yet be conferred upon the Holyrood Inquiry; believes that the leaders of all political parties in Scotland should immediately agree to write jointly to the BBC calling upon it to cooperate with the Inquiry, and considers that the First Minister should seek to appear before the Inquiry as a witness in order to answer questions about his role as Minister for Finance."
I should begin by declaring an interest. As a member of the Scottish Parliamentary Corporate Body, I have been interviewed occasionally by the producers of "The Gathering Place". However, although I can recollect neither what was said nor what was asked, I am pretty sure that there is nothing of interest to the Fraser inquiry in my section of the tapes, and I am certain that I did not reveal the secrets of my soul in them.
I have not seen the tapes and have no idea what Donald Dewar or Enric Miralles might have said, but I am equally certain that they are not some Holyrood version of the Watergate tapes and that there are unlikely to be any hitherto unknown revelations on them. Lord Fraser has not made any formal request in writing to the Parliament for help over the tapes. Indeed, it is a matter for him—not David McLetchie or indeed this Parliament—to decide how significant he thinks the tapes are.
Will the member give way?
No, not at the moment.
Will the member give way?
I am sorry, but I am not giving way at this moment.
It should not be beyond the wit of man for the inquiry and the BBC to reach agreement on this matter. Indeed, we know that the BBC offered Lord Fraser a transcript of the individual sections with Donald Dewar and Enric Miralles with references to third parties removed.
The First Minister and the Presiding Officer set up the Fraser inquiry to find out the truth about the Parliament building. Of course, the Auditor General for Scotland will also produce a report—not his first one—on the issues within his provenance. Lord Fraser has already cast much light on the background to the project.
That said, does anyone seriously believe that the tapes will add significantly to the sum of human knowledge in this respect? I see no particular reason why they should not be released to the inquiry, but that must be done by agreement. We have to approach the issue according to substantial established principles.
I hear what the member has said. However, can he seriously claim that the tapes will not contribute evidence to the inquiry?
I simply say that I do not believe that they will, and I take the view that the issue has to be approached according to established principles.
Primarily, there must be a reasonable expectation of relevant and testable evidence being available, which will add key information about the matter. The tapes cannot in any event be cross-examined. A voluntary agreement is one thing, but it is a different ball-game for the Parliament to require production of the tapes. Such a move would be a gross interference with civil liberties and with the independence of the BBC.
I am equally clear that the independence of the BBC should not be threatened by the irresponsible, publicity-seeking actions of the Conservative party in the Parliament. I say to the Conservative members that to require the production of the tapes would set a disastrous precedent for the future of the BBC, other organs of the media and the Parliament. Only the most overriding principles in situations of overriding public safety could justify that action, and such a situation does not arise here. It particularly does not arise when people try to twist the law and the legal powers of the Parliament to achieve their ends—that is what the Conservative motion does. That is the way of an arbitrary and unprincipled exercise of power, and it should have no place in the actions of this Parliament.
Will the member take an intervention?
I am in my last minute.
I campaigned for this Parliament for many years and I believe that it is able to do much good for Scotland. It has undoubtedly been harmed by the long-running saga of the Parliament building, but today's motion is little more than a political stunt by the Tories. David McLetchie has consistently used the Holyrood project to attack and denigrate the devolution settlement. No press story about the building is complete without a sarcastic sneer or jibe from him. David McLetchie is the same Tory leader who refused to take his place on the Holyrood progress group to give us all the benefit of his advice on to how to do the project better.
In conclusion, the words of a former Conservative Prime Minister, Stanley Baldwin, come to mind:
"Power without responsibility—the prerogative of the harlot throughout the ages!"
I move amendment S2M-1117.4, to leave out from "agrees" to end and insert:
"notes the current Holyrood Inquiry being conducted by The Rt Hon The Lord Fraser of Carmyllie QC as instigated by the First Minister and the Presiding Officer; encourages all those with an interest in the Inquiry to provide Lord Fraser with all required documentation and material and strongly encourages both the Inquiry and the BBC to arrive at a mutually acceptable resolution to the ongoing issue surrounding the availability of information from tapes of the Wark Clements Productions' programme entitled "The Gathering Place"; supports the independence of the BBC against political interference as a fundamental bulwark of our civil liberties, and believes that the Parliament would undermine the independence of the BBC by seeking to compel it to take any particular course of action but would nevertheless welcome a decision by the BBC to allow Lord Fraser appropriate access to the tapes."
I am pleased to open for the Labour party. I was a BBC producer for 12 years; I speak not as someone with a direct interest but, like many other members, as someone with an informed and strong concern about the Conservative motion.
First and foremost, the BBC has a right and a duty to defend its reputation as an independent broadcaster. However, that right is not absolute, and should not be exercised at the expense of its duties to justice, truth and fairness. As the Hutton inquiry revealed only too clearly, those who are charged with managing the BBC have to exercise judgment about when to defend the BBC robustly, and when they might be disproportionately using its weight and reputation to defend a highly contentious decision.
When I heard about the BBC's refusal to hand over the tapes for the programme on the Holyrood building, I questioned its judgment. I could have understood it defending the confidentiality of its journalistic sources, but given that Donald Dewar and Enric Miralles had since died, it looked to an outside observer as if it was defending its audience ratings rather than its journalism. I was also concerned about what looked like a point-blank refusal to budge.
However, it is quite clear that that is not what has happened in this case. The BBC has offered to share the information with the Fraser inquiry. On "Newsnight Scotland" last night, the controller of BBC Scotland, John McCormick, made it quite clear to David McLetchie that he has offered Lord Fraser access to the interviews in question. Before Mr McLetchie starts bleating about what kind of access that is, my point is that John McCormick has exercised his professional judgment on the matter. He is a highly experienced and respected broadcaster, who steered the BBC through the turbulent political process of devolution, during which time broadcasting was often at the heart of the debate, and he has clearly reached a balanced decision about the tapes.
Rather than negotiate through the pages of the press, the BBC tried to open discreet talks with Lord Fraser to resolve the problem in an adult fashion. Initially, that led many people, including me, to jump to the wrong conclusions, but the BBC put up with that damage to its name on the ground that it was trying to do the right thing. John McCormick's decision was informed by the public interest as well as the BBC's interest. At the very least, we should respect the views of someone who has an outstanding record of public service. The contrast with Mr McLetchie's position could not be clearer.
On "Newsnight Scotland" last night, Mr McLetchie's threats to John McCormick of black Marias, £5,000 fines, or three-month prison sentences represented a shameless attempt to bully someone who is in an awkward position. The images that were immediately conjured up in my mind were those of the Tory years, when the police were constantly being sent round to Broadcasting House to seize tapes and the Government of the day made no attempt to hide its desire to intimidate the broadcasters.
Will the member give way?
I will give way in a minute, if the member does not mind.
The Tories have long been anti-BBC and anti-Scottish Parliament and it strikes me that they grasped the opportunity for today's debate with relish, rather than with reluctance. While those of us who respect an independent media wring our hands in despair, the Tories are rubbing their hands in glee.
There is absolutely nothing new in any establishment trying to hide or disguise the truth. More than 200 years ago, Rabbie Burns had the classic response to a similar situation, which was duly written down for posterity.
What is your point, Mr Swinburne?
What Rabbie Burns said is as true today as it was then:
"Here's freedom to them that wad read,
Here's freedom to them that wad write!
There's nane ever fear'd"—
That is a fascinating exercise in verse, Mr Swinburne, but I would be grateful if you would take your seat and allow Mr Macintosh to resume his speech.
Even if all members do not share my opinion that we should trust the measured judgment of the BBC over the political opinions of the Tories or those with an agenda, it is fair to ask what justification or reason there is for the Parliament to take the radical step, not just of intervening in the workings of an independent inquiry, but of using its full powers against our independent, national, public service broadcaster. I believe that we would need to be convinced that Lord Fraser had exhausted every other avenue that was open to him or, at the very least, that Lord Fraser had tried to use some of the extensive powers that are already at his disposal. I see no evidence that that is the case.
Will the member give way?
No, thanks.
Lord Fraser has not even invited the producers of the programme to give evidence and, as Robert Brown pointed out, he has not written formally to the Parliament to ask us to use our powers.
Will the member take an intervention?
The member is in his final minute.
I am in my final minute. There is a fundamental flaw in the motion, which asks us to order the handing over of tapes when we do not know what is in them or whether they would be of any relevance to the Fraser inquiry. Whatever material was gathered was not given on the record at the Fraser inquiry and we do not know the intent of the individuals involved when they were interviewed.
In passing—I wanted to intervene during Mr McLetchie's speech to make this point—I want to say that I object to the implication that the BBC would somehow censor any material that was at its disposal. It is a far cry from respecting the context of trust in which comments were made, to manipulating information to thwart Lord Fraser's efforts.
Many reputations have already been damaged as a result of the Holyrood building project and this row with the BBC. Let us not add to that damage by invoking the full powers of the Parliament against one of our most respected national institutions. Let us urge those involved to seek a constructive solution, so that we can retain our confidence in the Fraser inquiry and our trust in the BBC and so that we can rebuild respect for the Scottish Parliament. I urge members to support Robert Brown's amendment and to reject the Conservative motion.
I have some admiration for the BBC's programming skills. In the career that I pursued before I entered the Parliament, they were often the benchmark against which other broadcasting organisations measured themselves.
However, broadcasters and journalists were not always so sure about the quality of the corporation's judgment. In recent weeks and months, it has been interesting to witness—at national and at local level—that failure of judgment at the highest levels in the BBC. I believe that there has been a catastrophic series of misjudgments by BBC Scotland in the current controversy. Frankly, the problem could and should have been sorted out months ago. Despite what the First Minister claims, there is no great issue of press freedom. No one is suggesting that the tapes should be confiscated or that Lord Fraser should have any involvement in eventual editorial decisions, so what or whom is the BBC trying to protect?
In my previous role as a television producer, I routinely co-operated with the police, procurators fiscal and others by allowing them to view rushes, having made it clear that there should be no attempt to influence the subsequent editorial line. The rushes for the Holyrood programme will already have been checked for quality by recordists and they will probably have been viewed by dozens of production staff within Wark Clements and the BBC. Yet, incredibly, BBC Scotland has been unwilling to allow Lord Fraser similar unfettered access to unedited material.
Will the member give way?
No, I would like to carry on.
Over the weeks and months, we have heard all kinds of weasel words from the BBC. First, it appeared to claim that Miralles and Dewar had signed release forms in respect of their interviews being screened only in the final, edited programme. However, when it transpired that other contributors—including the Presiding Officer himself—had given interviews and recalled signing no such release forms, the BBC's story changed. We were told that the issue was really one of editorial integrity. While that line was still being peddled, we discovered that the BBC was in secret negotiations with Lord Fraser about handing over edited versions of the interviews. What price editorial integrity? For a state-funded body to be offering an edited version of interviews to an official inquiry, rather than offering full access, is either breathtaking arrogance or woeful misjudgment.
Of course, Lord Fraser could accept no such selective presentation of material and the secret negotiations foundered. The plain fact is that the BBC has totally misjudged its responsibilities as a public broadcaster. None of us knows whether the Holyrood tapes contain anything of value to the inquiry. The producer, perhaps not surprisingly, claims that they hold important material—which is all the more reason for us to have access to them before Lord Fraser's inquiry reports.
Jack McConnell and the SNP claim that more pressure should be brought to bear on the BBC to hand over the tapes voluntarily. What further pressure do they suggest? BBC Scotland has, for months now, repeatedly resisted urgings from Lord Fraser, Jack McConnell and from all sides of this chamber to hand over the tapes. If the First Minister will not use his powers in relation to the BBC, will he ever use them to help the inquiry? Or is it only the media that are to be above the law?
When I last spoke here about this documentary, inadvertently, but perhaps presciently, I referred to it as a gathering storm. That storm is about to break, with potentially disastrous consequences for BBC Scotland, but also for the Executive and the Parliament. If the Scottish Parliament ducks its responsibility today to give Lord Fraser the support that he has requested, it will be guilty of an even graver lapse of judgment than that of BBC Scotland. I urge members to support the motion.
There are many occasions on which I would wish to direct the media in their activities, but it is not the job of the Parliament or politicians to operate the BBC or any broadcasting—other than that which directly provides the feed of our own activities from this chamber and the committee rooms. On that basis, the Tory motion is entirely misplaced. However, there may be more to this issue than there appears to be. Mr Michael Howard's desire to sook up to Murdoch by disconnecting the BBC from its core public service obligation and by supporting the efforts of News International to become the most significant provider of news is well understood. The Tories hate anything that serves public good at the expense of private profit.
Note the words that David McLetchie used about the BBC: he said that it should be "required to comply". Required by politicians, that is. David McLetchie fails to make the very important distinction between a command from politicians and a command from a legal institution.
Will the member take an intervention?
Mr McLetchie had his chance and would not take it. Sit.
Mr McLetchie fails to make that distinction, and that is why the SNP amendment focuses on the Tribunals of Inquiry (Evidence) Act 1921, to give the Fraser inquiry—that legal institution—the power to require the BBC to act. There is a world of difference between politicians directing the BBC and lawyers doing so.
However, none of that is to say that the BBC comes out of this with its reputation enhanced—far from it. A dignified recognition that a public good would derive from its releasing the interviews with those who cannot now speak for themselves would have done the BBC much good. In the absence of a response from the BBC to the Fraser inquiry's requests, we are left with two possible conclusions, neither of which is especially palatable.
The inquiry is about a cost overrun and this debate is about the BBC in relation to that inquiry. Does the member agree that the Parliament and the BBC are failing the public by not mentioning another inquiry that is taking place? I am referring to the M74 inquiry, which also—
I am afraid that the member is wandering right off the subject and that she must now resume her seat, as her sound has been taken away. I invite Mr Stevenson to continue his speech.
I have noted what the lady said and I am sure that there is some merit in it.
The key point is that the tapes may contain dynamite; if they do, withholding them from the inquiry so that the real meat cannot be seen is concealment, which is not acceptable. The alternative is that the tapes are banal. In a sense, that also tells us a story about the lack of attention of those people who were involved—
Will the member give way?
I am sorry, but I am in my final minute.
The apparent absence of fair dealing on the part of some members of the Executive is what gives some weight to the conspiracy theorists and traps our democracy in a backward-looking time warp. The First Minister could set to one side many of the criticisms by a brief appearance in front of the inquiry. I regret that he has not done that, but he could exercise real leadership now by joining the other leaders and adding the weight of his office to the weight of their offices to persuade the BBC to do the decent thing. He could do even better by giving the tribunal the powers and persuading Westminster in that regard.
I have just come up from the Holyrood site and I am afraid that I have some bad news for David McLetchie—the project is moving towards completion very rapidly indeed. When the Parliament flits later this year, after all the years of recriminations about the design, the site, the process and the mistakes—both real and perceived—people in Scotland are going to find themselves the owners of a very fine national building that is a world-class Parliament building, not a fiasco. When that happens, David McLetchie and his friends will have to find something else to girn about. Mr McLetchie faithfully represents the doom-and-gloom school of Scottish self-esteem, which was once immortalised by a certain Private Fraser—but I had better move on to another Fraser.
I certainly wish Lord Fraser well in his efforts to work out what the buck is and where it should stop. I expect that it will be quite a lot easier for him than it has been for members of the Holyrood progress group to judge who or what has been responsible for specific problems, delays and costs, because the inquiry obviously has the benefit of hindsight.
Like other members, I find it extraordinary that Lord Fraser has not yet found a way of taking up the BBC's offer of access to material that has been collected for the documentary. On the basis of the highly diligent work by its researcher Susan Bain, who has been present at countless meetings over several years, the Wark Clements team will certainly have a very good understanding of this epic. That information would be of great value to anyone who is taking a serious interest in the subject. Like Robert Brown, I never received or requested any undertaking to embargo any material, although I have no way of knowing whether such undertakings were given to Donald Dewar or Enric Miralles. I would have no objection whatever to the disclosure of material to the inquiry.
That said, I respect and strongly support the duty of our public service broadcaster to make professional and ethical judgments about the disclosure of information. The BBC has an excellent track record. Very occasionally, it gets things wrong and I hope that Lord Hutton's findings will encourage it to try harder, but it would be reckless and, I submit, wrong for this Parliament to set a potentially dangerous precedent by imposing a political decision on the British Broadcasting Corporation in Scotland. On the grounds that it would be wrong for any Government to do that and that it would be just as wrong for this Parliament to interfere with the BBC's independence, I intend to support Robert Brown's amendment.
I want to say a word about the big issue that may or may not be covered in Donald Dewar's interviews. Every media story about Holyrood is prefaced by the assertion that the budget for the building is supposed to be £40 million. That is just not true. That figure, which comes from the 1997 white paper, was for the construction cost only of a completely different building—a standard type of building with a short design life on a low-cost site.
The fact is that Donald Dewar went through a process of decision making in 1998 and that he rightly went for a city centre site and an international design competition for a very different type of building with a long design life. That is what happened—that is the building that is now being completed. Undeniably, the building is very expensive; I regret that as much as anybody. I think, however, that Scots will be taking a pride in the Holyrood building long after David McLetchie and those like him have been forgotten.
I rise to speak against the motion. Section 23 of the Scotland Act 1998 should not be used to undermine the freedom of the press and it should certainly not be used in this instance. To agree to the Conservative motion would be to set an appalling precedent that could damage the reputation of the Parliament not only in the eyes of the people of Scotland but internationally.
I am sceptical of the SNP amendment, which I think is out of time. I supported the motion that Margo MacDonald lodged on 10 March. The safe environment of a members' business debate—following which there is no vote—on her motion would have enabled MSPs to express an opinion, which the BBC and the Fraser inquiry could have considered. However, as far as I can remember, hardly any Conservatives supported that motion.
The Conservative motion is a completely different creature: at its head is a measure that would undermine the freedom of the press and close to its tail is an outrageous piece of political opportunism that is cynically designed to grab a last few headlines before the new Holyrood building is unveiled.
I supported the Holyrood project from the very start. The Conservatives, however, refused to join the Holyrood progress group. For the past few years, they have been content to abdicate responsibility and howl from the sidelines.
Will the member give way?
No. I find David McLetchie's behaviour incomprehensible.
I am quite certain that when the Scotland Act 1998 was drafted, nobody in their right mind would have considered that section 23 would be used by the Parliament to compel any branch of the media to hand over unbroadcast or unprinted material in the circumstances that we face at present.
I have little sympathy with Fergus Ewing's approach, which is late and out of time.
In a free society, the balance must always be in favour of the people to whom we entrust the task of exposing wrongdoing and who, through clear and factual reporting, counter the spin of politics. The BBC must be protected from being turned into a political football, which is the situation that we are witnessing at the moment.
For five years, the Conservatives and the SNP have provided opposition, which has, on occasion, been trenchant and witty. Today, the Conservatives think that they smell blood; they are prepared to sacrifice even the freedom of the press on the altar of political opportunism. The Parliament should reject the motion.
Journalists across the world need to have their independence assured. They use cameras to film trouble spots—they film men with guns in dangerous places. If we do not guard jealously our media's independence, we risk the guns being turned on the cameras instead of the cameras being turned on the guns.
On behalf of my party, I reject the Conservative motion.
It is important to place the subject of the debate in a political context and in perspective. I sense a wee bit of baying for blood in the chamber. A bit of an unseemly attack is being made on a target that has been softened up by Blair's shenanigans in trying to avoid any real scrutiny of the reasons for going to war in Iraq.
We should put the debate in the context of, for example, the overspends in the Ministry of Defence's budget for death and destruction. The MOD overspent by £3 billion in one year alone and its 20 largest projects are a total of 144 months behind schedule. One Nimrod aircraft project is £538 million over budget—
Will you be coming to the point, Ms Leckie?
Yes, I will be. I am putting the debate in its political context. We are politicians; I thought that we wanted to talk politics.
We have a motion and two amendments to speak to.
The points that I am making are relevant. The MOD was £1.3 billion over budget on the Typhoon aircraft. One company, BAE Systems, is responsible for all of that.
I wish that the Scottish Parliament and the Westminster Parliament would apply the same scrutiny to those overspends that is being given to this debate. I would like to see BAE Systems compelled to hand over its accounts so that we can ask where the heck all the money has gone.
However, there is a serious issue that must be considered in the context that I have laid out. Personally, I am bored to tears by the coverage from "Newsnight Scotland" of the Holyrood inquiry night after night. I am on the point of starting to believe that Fergus Ewing is a character in a new soap, whose ratings must be in single figures. Folk are in danger of getting their knickers in a twist.
Voting for draconian action would set a dire precedent for the rights of BBC and other media journalists not to disclose their sources or breach confidentiality. I cannot support any compulsion of the BBC or of journalists to hand over the tapes.
Will the member give way?
No—sorry.
I cannot support any pressure being brought to bear to hand over notes or untransmitted material, so I cannot support the amendments. I defend the right of "Newsnight Scotland" to be boring if it wants to be. That is its editorial decision.
The Parliament should take very seriously indeed the representations that the National Union of Journalists has made. It is not that I have any illusions about the independence of the media or the BBC. Governments, the security services and big business get off lightly at the expense of trade unionists, strikers—such as the nursery nurses—the vulnerable, the poor, community campaigners and other campaigners, including those who have campaigned against the M74 extension.
I regret that my amendment was not accepted. Robert Brown's and Fergus Ewing's amendments do not go far enough, as I do not accept that it is right to apply pressure of any sort. I happen to think that the tapes will not make the inquiry or "Newsnight Scotland" any more exciting, but the precedent that would be set would be very grave.
Where are we going? For goodness' sake, why are we not debating Tony Blair's announcement yesterday that he is considering authorising covert surveillance for hooliganism?
David McLetchie asked what we would do to put the tapes in the public domain. The simple answer is that he must wait for the schedules to come out. He will see the material soon enough. However, I think that the issue of Jack McConnell not appearing at the inquiry is pertinent. We should discuss that. If the First Minister is not prepared to appear in front of the inquiry, there should be an element of compulsion.
I regret that my amendment to the Conservative motion was not accepted. My amendment sought to clarify that the Fraser inquiry has intimated that continued withholding of the information could impair its ability to report in the summer as it said it would. I will develop that point later.
I also regret that the Presiding Officer did not accept my emergency question today, which would have disposed of the matter once and for all. I wanted to ask the Scottish Executive whether it was aware of the Fraser inquiry's concern that the continued withholding of the material is a possible impediment to the ability of the inquiry to report.
Will the member take an intervention?
Let me get started before I take any interventions. The member has been dying to intervene since I spoke earlier.
My emergency motion and my amendment would have highlighted the superiority of the public interest over what the BBC perceives as the corporation's interest.
For those who have questioned whether Lord Fraser has asked the Parliament to get the tapes, let me quote from a letter that the inquiry sent to Dennis Canavan and me on 25 March:
"The continued withholding of this material is a potential impediment to Lord Fraser's ability to submit a final report this summer …
I am copying this letter to the Presiding Officer."
Therefore, the Presiding Officer is aware of Lord Fraser's concern that the inquiry does not have access to the tapes.
Now I have two members asking to intervene. I will give way to the best looking one.
I thank the member for giving way with such a nice comment.
I have to sook up to Mike Rumbles.
Surely what Lord Fraser has said to one witness or another is beside the point. Has Lord Fraser written to the Presiding Officer to request that the Parliament take action—yes or no? I think that the answer is no.
I did not want to use my time to explain all this, but the letter states that Lord Fraser
"has expressed some surprise that the powers of the Scottish Parliament are as circumscribed as they appear to be even when the Parliament seeks to exercise a power solely and exclusively for its own purposes."
That reference is to the fact that the Parliament might seek to hand on the tapes. However, that is not being sought; the motion does not suggest that it is, either.
We will indulge the BBC's sense—which is misguided in this instance—of its journalistic integrity if we vote for Robert Brown's amendment, because it would give the BBC carte blanche to cause the Fraser inquiry to spend more public money. That is against the public interest, and it is therefore not bullying for the Parliament to use its power under section 23 of the Scotland Act 1998 to protect the public interest.
Two ministers in the Executive have a "general responsibility", to quote section 23, for the Fraser inquiry: the First Minister, who set it up and defined the expectation of what it might achieve as regards illuminating the process that has led to such an overspend on the Holyrood project; and the Minister for Finance and Public Services, who must be judged to have a general responsibility, as he must find the money to pay for the Fraser inquiry and try to ensure best value for public money.
The Executive has made strenuous efforts to persuade the BBC to allow the Fraser inquiry access to the material in the tapes in the interests of its public duty, as that material has the potential to help or hinder the inquiry to report this summer. We would all prefer to win arguments by persuasion, but if we fail to do so and the public interest is at stake, we must not be afraid to use the power that is legally vested in the Parliament, and that is what I ask members to consider doing today. Public opinion is behind us in seeking to obtain access to the tapes to assist the Fraser inquiry, but what opinion of us will the public form if, by voting for Robert Brown's amendment, we concede that the BBC is in a better position than the Parliament to decide what is in the public's best interest and whether more money should be spent on prolonging the Fraser inquiry?
Robin Harper said that he cannot support the motion because he is concerned about the BBC's integrity, but the motion has nothing to do with that; it has to do with the Parliament's responsibility to protect the public interest. How many of us, including Robin Harper, are prepared to justify spending more than necessary on the Fraser inquiry when nothing that Peter Fraser is likely to do will spoil the BBC's reputation—the Hutton inquiry excepted, of course—for protecting its sources?
I ask members not to vote for the soft option; people will ask why they need us if we balk at taking the hard choice.
In my speech, I seek to do something that does not come easily to the inmates of the Parliament: to see ourselves as others see us. Nothing has offended the public more than the faltering and expensive progress of the Parliament building project. It is sad to say that the project has become an icon for the public of all that is provocative, frustrating, enraging and incomprehensible about the political process. That angst and rancour have struck at the core of public regard for devolution, and, as one nightmare scenario after another has emerged from the Fraser inquiry, the public ire has intensified.
To be frank, the public have an appalling opinion of MSPs; they want both an explanation and the facts. An inquiry without the tapes is tainted, and the public know that. The vision of politicians dancing on debating pinheads that we have seen today—be it Robert Brown and his literary eau de Nil emulsion or the deferential apologist for the BBC in Ken Macintosh—is calculated to provoke further public wrath, and if the public is hostile to the political process, it is no less disaffected by the BBC. If the inquiry is to avoid being discredited, the tapes are required, and Lord Fraser knows that. The disaster of the expensive and tardy progress of the building project is unique—we must be clear about that—but perhaps it is that uniqueness that explains why it has monopolised public interest.
None of us wants a project of that type ever to be repeated or an embarrassment of that sort ever to be visited on the Scottish public again. Politicians can step in today and do two things: something to try to retrieve their badly damaged public image; and something substantive and constructive to try to procure the tapes.
If the BBC can volunteer a tape to the Hutton inquiry and can be compelled by an inquiry under tribunals legislation to give information, it is difficult to see why, in the case of a unique, unusual and extraordinary incident of this type, the BBC cannot volunteer to make its tapes available, particularly given that one of the parties that is associated with the tapes was involved in the initial part of the project and herself gave evidence to the inquiry.
I support the motion because I think that it will do two things: it will do a lot to justify our belief that the Parliament is worth while; and it will explain to the public that the Parliament can actually do something useful that they want it to do. That would assist the inquiry the whole purpose of which is not to comfort us or to excuse, absolve or explain what we have been doing, but to explain to the public, beyond a shadow of a doubt, what happened, and then leave them to make their judgment. The inquiry cannot do that unless the tapes are produced. I support the motion.
At the heart of the debate is the question whether the Parliament should use its powers under sections 23 and 24 of the Scotland Act 1998. It is important that the Parliament think very carefully before using such powers, under any circumstances. The powers are there as a backstop to prevent public bodies and organisations that use public money from not disclosing to the Parliament information that it requires to conduct its inquiries fully. They are not there to be used as a battering ram against media organisations that may or may not have information as a result of their work as independent, free media that may be of interest to—although not necessarily required by—the Parliament.
I happen to believe that the row over the tapes has been blown totally out of proportion to its relevance. As Robert Brown suggested, I do not believe that that there will be anything on the tapes that will shed any light on the Holyrood inquiry that Lord Fraser cannot get from the other sources available to him for his inquiry. I do not believe that a single word on the tapes will constitute information that is not already available to the Fraser inquiry. It is completely pointless for this row to go on.
I wonder if the member is aware that the producer of "The Gathering Place", Stuart Greig, said on "Newsnight Scotland" last night that there was some very interesting material on the tapes and suggested that Benedetta Tagliabue might have forgotten what she had said. The whole purpose of the Fraser inquiry getting access to the tapes is so that Lord Fraser can compare what was said then in the light of what we know now.
Producers will always say that what they have produced is very interesting. I have read many a report advertising a supposedly very interesting newspaper story but, when I have picked it up, it turns out to be the dullest thing ever.
My point is that the Fraser inquiry has access to the information that it requires. Sadly, it obviously does not have access to Donald Dewar and Enric Miralles, who are now dead. We hear that, because those people are now dead, we must have access to tapes of them being interviewed. That is rather strange. Do the people who are calling for that also want access to every single person who may or may not have had a conversation with Donald Dewar or Enric Miralles about the Holyrood project over the years? Perhaps Lord Fraser might wish to go to the Links market in Kirkcaldy next week, speak to Gipsy Lee Rose and see whether she can make contact with Enric Miralles and Donald Dewar. We are getting into a situation in which we are looking for things on which people cannot be cross-examined—
Will Iain Smith give way?
I do not have time to give way. I am in my last minute and I have some important points to make.
Will Iain Smith give way?
The member is not giving way, Mr Gallie. You now have one minute, Mr Smith.
Robert Brown's amendment says that the Parliament believes the BBC should work with the Fraser inquiry to ensure that the relevant information is made available to the inquiry—if there is any relevant information. That is a sensible suggestion: Lord Fraser should discuss with the BBC its offer to give limited access to the tapes. I do not see any problem with that, and Lord Fraser should do it. However, we do not want the Parliament to start attacking the freedom of the press. The idea seems to be that every single notebook of every single journalist up in the press gallery now might be called for by the Fraser inquiry. That is not the sort of Parliament that I want.
I have serious doubts as to whether the Conservatives' proposal is actually legitimate. I do not think that what they are proposing would be a legitimate use of the Parliament's powers. The Conservatives have quietly twisted what they were originally calling for, which was for the Parliament to call for the Fraser inquiry to get the tapes. They now realise that that cannot be done and have moved a rather convoluted motion that refers to "an appropriate Parliamentary committee".
The Parliament will make a decision when Lord Fraser's report is—
Will the member take an intervention?
No—I am in my last few moments.
The Parliament will decide what to do with Lord Fraser's report when it receives it. It will then decide whether it requires any further information in order to make further judgments. It is not for the Parliament to pre-empt either that decision or Lord Fraser's report. The Conservatives really ought to realise that.
Section 26(5) of the Scotland Act 1998 states:
"For the purposes of sections 23 to 25 and this section, a person shall be taken to comply with a requirement to produce a document if he produces a copy of, or an extract of the relevant part of, the document."
The important phrase is, "the relevant part". Let us see the relevant part.
The debate is, above all, about ensuring that the Fraser inquiry receives the evidence that it needs to succeed. We know that, at present, it will not receive the tapes unless the BBC changes its position. We also know that the First Minister has not been asked to give evidence and is not insisting on doing so, which I believe is a serious error. The Conservatives have pointed out in their motion that it is the role of this Parliament to consider the work of the Fraser inquiry and to enhance the debate that ensues after the publication of the inquiry report. I submit that it is not only legitimate but our duty to make criticism in respect of the inquiry where it is felt due. I say that as someone who has attended every evidence session of the Fraser inquiry, with one exception, and who has pored over virtually every document on the inquiry website.
When Barbara Doig advised the late First Minister in a memo of 23 March 1999 that, given the increase in the estimated cost of the building, the budget must increase from £50 million to £60 million, the public are entitled to know why that information was not shared with them. We have the memo of 14 April 1999 in which Donald Dewar explains that that information should not be made public because a review was being carried out by independent consultants and the results of the review of costs would be available later in May. In other words, the reason that the information was hidden from the public was that the First Minister adjudged that cost consultants were doing reports.
We have been told by just about every civil servant witness, from Sir Muir Russell down, that the Davis, Langdon & Everest reports—the cost consultant reports—were not shown to the late First Minister, which I accept. However, there is the question—and only Mr McConnell is alive today to answer it—whether he was told what the reports contained. That question must be answered. I know from studying the inquiry documents that he was told of certain components. He was told in a memo of 19 May 1999 that there were commercial contingencies valued at £5 million or £6 million. He was told on 2 June at a meeting with the late First Minister, Messrs Gordon, Gibbons and Grice and Mrs Doig that there were risks. Did he ask what those risks were? He was told at that meeting that one of the risks was client change, which was one of the components in the DLE report. He was told in a memo of 26 May that the cost consultants' estimate, comparable with the feasibility design stage cost estimates of £50 million, was £62.2 million, excluding VAT, fees, contingencies and risk allowances. Did he ask what the risk allowances were? The phrase "risk allowances" means that they were a cost component, and the risk allowances were the DLE allowances. Unless the First Minister answers those questions, the public will have been denied the whole truth. What did he and the late Mr Dewar discuss on 1 June 1999? We know only that they discussed presentational issues.
Will the member give way?
No, it is too late.
Did Jack McConnell and Mr Dewar discuss the information that we would be told and the information that we would not be told? We know one thing: Jack McConnell was told that the landscaping costs might go up to a certain amount. How much do members think that they would pay for landscaping—trees, a few chips, some lawn and pot plants? Perhaps they would pay £10,000 or £20,000. Jack McConnell was given the figure of £10 million.
I can tell members why the Parliament was not told about that and why Jack McConnell held that information back from the Parliament: he knew that if the public had been told the whole truth and nothing but the truth, members would have voted against Holyrood on 17 June 1999. That is why we have not been told the whole truth. I am delighted to take the opportunity today to say that the First Minister will not be able to hide. He may not bother to attend the debate, but he will be unable to hide when those questions are put to him again.
The Tories should not be allowed to forget their history. As others have said, the BBC's studios in Scotland were once raided by special branch after a warrant was issued under instruction from the then Tory Government to remove all tapes that related to a documentary on the Zircon spy satellite and to Duncan Campbell, who was the journalist at the centre of that row. Members who remember the event will recall that the whole country was shocked that the Government had presided over a raid on the BBC by special branch. That is why the issue for us in the Parliament is not only protection of press freedom, but the separation of the powers of a national Parliament and the BBC. Two important principles are involved. I do not want to return to the days of Thatcher in 1986 and I suggest that, on the whole, Parliament does not want to do so, either. We should prevent any such event from happening again.
I welcome the Fraser inquiry and the intense investigation of witnesses that has prevailed in the past few months. I support the position that the BBC and Lord Fraser should reach agreement, but I do not believe that "The Gathering Place" will necessarily give us better evidence than the months of live interrogation have.
Annabel Goldie said that the public were frustrated. I believe that the public are demanding answers about the cost of the Holyrood building, but the public's concern is not about taped interviews with two men. The Tories want access to interviews with two men who, sadly, are no longer with us. They do not ask for anything else in respect of the programme, such as the fly-on-the-wall footage or examination of witnesses who have given evidence to the inquiry. We should be clear about the Tories' position. The interviews are of limited evidential value: as a lawyer, Mr McLetchie knows that.
Will the member give way?
I will not.
It would be difficult to use the interviews as evidence, because the interviewees cannot be cross-examined. We should get real about their evidential value.
We should expect the BBC as a broadcaster to protect its position. I would be concerned if the BBC simply handed over without question work that was undertaken for one purpose and which we intended to use for another. The BBC is right to defend the integrity of journalism.
Will Pauline McNeill give way?
I will not.
The BBC is also right to defend its position.
Will Pauline McNeill give way?
The member is wasting his time.
What I said does not mean that Parliament does not have the right to say that a voluntary agreement should be reached. No warrant or co-operation—to which Ted Brocklebank, who is an ex-BBC producer, referred—would allow anybody to conduct a fishing expedition. If Lord Fraser wishes to use Parliament's influence to secure the tapes, he should be clear about why he wants to see them and what he would use them for.
The Tory motion is dangerous, because it does not place clear blue water between Parliament and public broadcasting. It reads like a warrant, except that it is incompetent. In my view, it is ultra vires. It is clear that section 23 of the Scotland Act 1998 relates to devolved matters.
Parliament has not reached consensus on compulsion. There is no consensus for handing over the tapes willy-nilly without clarification of what they would be used for. Consensus among the parties lies in achieving a voluntary arrangement between Lord Fraser and the BBC. I am concerned that Lord Fraser appears not to have taken up the offer from BBC Scotland's controller; perhaps he is right to question whether the offer's terms are right, but he should break the ice and take up the offer that is on the table. That would allow him to argue for why he needs to see more of the tapes for their evidential value.
I respect the SNP's position, because it starts off well. However, the SNP has taken a no-holds-barred position that would allow Fraser to go on an absolute fishing expedition and the tapes to be handed over at the door of the reception. I have a big problem with the tapes being simply handed over and I say to Fergus Ewing that I understand that there are quite a lot of tapes. The inquiry must be focused.
Robert Brown's amendment strikes the right balance for all of us in the Parliament who believe that something is to be gained from gently saying that there should be a voluntary agreement. We know that an offer is on the table. As Margo MacDonald rightly said, it is astonishing that the producer of the programme was never asked to appear before the inquiry. That was uncovered last night. Perhaps the producer could have shed light on the purpose of the inquiry's having the tapes.
We should defend the freedom of the press and the separation of powers. We should do the sensible thing and say that Lord Fraser should take up the offer that is on the table and the BBC should do the honourable thing and co-operate.
A lot of credibility is at stake in this debate. First, there is the BBC's credibility. Its obdurate refusal to co-operate with a Government-appointed inquiry, using the most spurious reasons, does it no credit whatever; indeed, its action prejudices the effectiveness of the inquiry. However, the credibility of Parliament itself must be of greater concern to us this afternoon. Members should not delude themselves—Parliament's credibility is at stake.
No one in the chamber does not believe that the BBC should hand over the tapes. The two amendments to our motion make that quite clear, but many members seem to be unwilling to take the necessary action to ensure that the tapes are handed over and that full credibility is restored to the inquiry.
Those who do not wish to support our motion cannot have it both ways. When the First Minister announced the setting up of the inquiry last June, he stated clearly that the investigation must have full access to documentary evidence. In answering questions, he also reassured us about the terms of the inquiry and its powers. He was very reassuring. As events have unfolded, it is apparent that we should not have allowed ourselves to be so easily persuaded.
Are the First Minister and his colleagues trying to say in effect that the inquiry was not set up with the appropriate powers? There is a clear unease on the part of the Executive in respect of utilising the provisions of section 23 of the Scotland Act 1998. If the Executive is nervous because it thinks that such a move would not succeed, when it is clear that the First Minister manifestly failed to set up the inquiry with the necessary powers for Lord Fraser to fulfil the task, the blame will rest fairly and squarely on the shoulders of Jack McConnell.
Will the member take an intervention?
No.
The member is not taking an intervention.
Both amendments are predicated on the view that the BBC will react to persuasion.
Will the member take an intervention?
In a minute.
Indeed, Fergus Ewing seems to believe that letters from the party leaders will bring about the desired results. Unless the BBC management has been stored up on the planet Zog for the past six months, it must be fully aware of the views of the party leaders that the tapes should be released, but it has simply refused to release them. Does Fergus Ewing really think that such a form of persuasion will bring about a desired result? I have never thought of Fergus Ewing as being naive; indeed, he has been tenacious in his pursuit of many issues relating to the fiasco of the Parliament building—and rightly so—but what he seeks to do today will simply not get us anywhere.
As Bill Aitken knows, we believe that the inquiry must have full powers, so what he says is really not the point. Bill Aitken is on record as saying that there are legal problems with using section 23 of the Scotland Act 1998. Does he therefore accept that, if the Tories' motion were to succeed, we could be tied up in the Court of Session in a judicial review action with the taxpayer paying hundreds of thousands of pounds for both sides' expenses?
We have not come into the debate lightly—we have firm legal opinion that the motion is competent. Indeed, if the motion was not competent, it would not have been accepted for debate today.
Robert Brown's proposed amendment demonstrates similar naivety. In a speech that plumbed the depths of sanctimony, he sought to hide behind the principle of press freedom. That is no doubt a worthy principle, but does it extend to the deliberate suppression of evidence to an inquiry? I do not think so, but that is exactly what is happening.
Lord Fraser has to produce a report based on the best evidence that is available to him. None of us is in a position to assess the evidential value of the tapes—that is for Lord Fraser. However, I can well imagine Robert Brown's justified indignation as a defence lawyer were the Crown to fail to adhere to the principle of best evidence in a prosecution.
If we end up expressing no view on the matter today, or if we agree to some anodyne, self-serving amendment, the biggest loss of credibility will be to Parliament. The other day, the First Minister referred to our young Parliament. The Parliament has been established for five years and, in that time, should have developed much more self-confidence and maturity. If members believe—as I am certain they do—that the tapes should be handed over, we cannot do otherwise than take whatever action is necessary to ensure that the will of Parliament is fulfilled.
What Fergus Ewing, Pauline McNeill and Robert Brown have not said is what will happen if, at the end of the day, the BBC still says, "No." Members must show some consistency. Margo MacDonald has been consistent on the issue and lodged a motion that was largely in line with ours. I remind SNP members Sandra White, Alex Neil, Christine Grahame, Adam Ingram and Campbell Martin that they signed that motion and should therefore support the Conservative motion today. I stress that the Conservative group did everything possible to achieve consensus on the issue. When our motion was drafted, it was sent to all parties with a memo to the effect that we would welcome constructive suggestions. The silence was truly deafening, indicating that party groups are much more interested in supporting an insular and parochial agenda than they are in recognising that there is a major issue to be faced.
The First Minister, quite properly, set up the inquiry against a background of increasing public concern. That concern has now become anger. If other members are not prepared to give Lord Fraser and Parliament the necessary support, all that they will do is prejudice the credibility of the inquiry. The Scottish Conservative and Unionist Party group is certainly not prepared to do that.