Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, November 25, 2020

Official Report 1068KB pdf

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Legal Advice (Publication)

The next item of business is a debate on motion S5M-23445, in the name of Murdo Fraser, on legal advice. I encourage all members who wish to contribute to press their request-to-speak buttons.

16:35  

Three weeks ago, Parliament resolved that the Scottish Government should hand over to the Committee on the Scottish Government Handling of Harassment Complaints all the legal advice that it received in relation to the judicial review taken against it by the former First Minister Alex Salmond. That was a clear majority vote of the Parliament, and it is deeply disappointing that, three weeks later, that advice has still not been forthcoming.

It is a matter of regret that we are again having to spend parliamentary time asking the Scottish Government to meet its obligations to the Parliament and to the committee. The Government’s failure to comply with the will of Parliament is deeply disrespectful to the institution and it flies in the face of numerous demands that Scottish National Party ministers have made in the past that the will of Parliament be respected.

The background to the situation is the on-going inquiry into the Government’s handling of harassment complaints against the former First Minister Alex Salmond. We should never forget that at the heart of this matter are a number of women who made complaints in relation to the behaviour of the former First Minister, and who have never seen a resolution to those complaints. By continually refusing to co-operate with the committee and meet the committee’s reasonable requests for information, the Scottish Government can only be adding to the stress and discomfort that those individuals feel. They have a right to know what went wrong, as indeed does the committee, members of the Scottish Parliament and the broader public.

We are dealing with a situation where more than £500,000 of taxpayers’ money was paid out in legal costs to the former First Minister, and that sum takes no account of the in-house costs and external costs incurred by the Scottish Government itself. Remarkably, we still do not have a functioning complaints process at the heart of the Scottish Government that is compliant with the law, nearly two years on from the concession of the judicial review.

Last week the Lord Advocate, James Wolffe, appeared at the committee to answer questions in relation to the conduct of the judicial review. He was asked a series of questions by various members of the committee in relation to the Government’s legal position on the judicial review and the legal advice that it took. He refused to answer those questions, not once, not twice, but on 27 separate occasions, in each case citing the law officer convention that ministers do not confirm the involvement or non-involvement of law officers in any particular matter. That is 27 separate occasions on which members of the committee from different political parties felt that there were relevant issues that needed to be explored, but the Lord Advocate refused to answer the questions.

That puts in context the line in the Government amendment that talks about the Lord Advocate’s co-operation with the committee—there are 27 ways in which to refute that statement. That is not transparent government and it is not the way to get to the bottom of what has gone wrong here.

What we do know is that when the judicial review case was conceded by the Scottish Government, the award of expenses paid to Mr Salmond, from taxpayers’ money, was at the highest level possible, which is payable only when, in the words of Lord Hodge, a defence has been conducted “incompetently or unreasonably”.

It is, in my view, therefore perfectly reasonable to ask the question: what went so badly wrong with the Scottish Government’s defence that it could be classified as either unreasonable or incompetent? However, we cannot get to the bottom of that key question until we see the legal advice.

Three weeks ago, Mr Swinney said that the Scottish Government would reflect on the vote in Parliament and consider what could be produced. Three weeks later, we are no further forward, and time is running out.

For months, the committee has been asking for this legal advice. The committee hopes to conclude taking oral evidence by Christmas, effectively giving us four weeks of parliamentary time from now. It will be extremely difficult, if not impossible, to meet that deadline unless the legal advice is forthcoming. It is hard, therefore, to avoid the conclusion that the Government is cynically running down the clock on the inquiry, hoping that time will overtake us and we will not be able to do the job that Parliament expects us to do.

We should remember that this committee was established back in February 2019. The Government has had ample time to deal with the provision of evidence and should not be scurrying around at the last minute trying to make excuses about why vital documentation should not now be made available. Further, it is not just the Opposition parties saying that. Three weeks ago, the Scottish National Party MSP Alex Neil said this:

“The Government is going to have to release this legal advice. In my view the founding principles of the Parliament are openness, transparency and accountability. In this instance, the logic of that is this legal advice has to be given to the committee.”

He is right. Writing yesterday, in The Press and Journal and The Courier newspapers, the former special adviser to the Scottish Government Campbell Gunn said that he could not see the logic in the Scottish Government’s position. He said this:

“If, as they say, they have nothing to hide, then surely they shouldn’t hide things ... Do ministers, advisers and senior civil servants have any conception of how their current position looks from the outside?”

If even people in the SNP are saying that, the Government really needs to start listening. There have been numerous occasions in the past when the SNP and ministers have demanded that the will of this Parliament be respected. For example, on 31 March 2017, the First Minister said this:

“In my view, the will of the Scottish Parliament must be respected. It is a question not of if it is respected, but how”.

That is the situation that we are in today. It is time for Scottish ministers to respect the will of Parliament, stop delaying, stop the obfuscation and provide the legal advice without further delay.

Time is running out on the committee inquiry. If the Government wants to have any shred of credibility left when it comes to openness and respecting the will of Parliament, it must produce the legal advice. That is what my motion says, and I have pleasure in moving it today.

I move,

That the Parliament recalls the vote on motion S5M-23218 on 4 November 2020, in which it called on the Scottish Government to publish the legal advice it received regarding the judicial review into the handling of harassment complaints against the former First Minister, Alex Salmond; notes that the legal advice sought has not yet been published, despite the Committee on the Scottish Government Handling of Harassment Complaints requesting this by 13 November 2020, and calls on the Scottish Government to respect the will of the Parliament by providing the legal advice without any further delay.

16:42  

Earlier this month, when Parliament last debated this issue, I set out the reasons why Scottish ministers considered that the balance of public interest lay in maintaining legal professional privilege. After that debate, Parliament voted in favour of the motion calling on us to publish that legal advice. I take that vote seriously, and the Scottish Government always seeks to respect decisions that are taken by Parliament.

On 10 November, the convener of the committee wrote to me asking that the legal advice be released by Friday 13 November, three days later. I wrote back to the convener on 13 November, setting out my intention to consider with my ministerial colleagues both the vote of the Parliament and the arguments put forward during the debate.

In that letter, I explained that, even if ministers were to decide that the balance of public interest lay in disclosure of legal advice, we would have to obtain the prior consent of law officers, which could be given only if there were compelling reasons for doing so. What is more, if the law officers consented, significant further work would be required to implement that waiver of legal professional privilege.

Documents already provided to the committee, and those prepared for disclosure in the near future, which I have already written to the convener to make clear are being submitted to the committee shortly, would need to be reviewed in order to remove any legal privilege redactions and to add any redactions needed to protect the identities of the complainers or to comply with data protection law. That is an important point to appreciate. We are not talking about two or three documents that clearly constitute legal advice, which we could release and which would satisfy the call for us to waive legal privilege. The Scottish Government has already provided more than 1,000 pages of documents to the committee and has also processed at least the same again for release, pending agreement with the former First Minister’s lawyers.

Each of those documents would need to be reconsidered and potentially released to the committee in a different form; that would take time.

I set out that detail to address the comments of those, including Mr Fraser, who have criticised the Government for not immediately releasing the legal advice and to explain the scale of the task involved. That would be a serious and significant decision for the Government to take and an equally serious and significant undertaking to fulfil.

The Deputy First Minister is aware that the committee has been asking for sight of that legal advice, not in the past three weeks but for many months before that. If the Government decides to produce the legal advice, can he give us an estimate of the likely timescale for all that work? Given the committee’s planned programme of work, are we talking about weeks or months?

I will make two points. The first is that, although the committee has been asking for the legal advice, the Government has been maintaining its position, which has been maintained by all Governments in these islands, that legal professional privilege is an important principle to protect. The Government’s position has been clear that we are not persuaded by the arguments about waiving the legal professional privilege that is clearly stated in the ministerial code, to which members rightly hold ministers on a regular basis.

In relation to the consideration of the material, more material will be made available to the committee, as I confirmed to the convener in a letter yesterday. I gave commitments some time ago that we wanted to issue more material, but that it would have to be agreed, because some of the information is in dispute with the lawyers for the former First Minister. Based on the information that has been cleared for release, I hope to provide as much information as I can to the committee in the coming days.

We need to take the necessary time to consider those issues and to formulate a proper response to the decision that Parliament took a few weeks ago. As Mr Fraser referred to, the Lord Advocate attended a meeting of the committee on 17 November. During the evidence, the Lord Advocate made it clear that complying with the law officer convention and the Government’s assertion of legal professional privilege—which was casually dismissed by Mr Fraser in his comments—would not prevent the Lord Advocate from giving a full account to the committee of the legal position that was taken by the Scottish Government throughout the judicial review. Of course, the Government’s legal position has been set out in the disclosure of all the pleadings that have been submitted to the committee, along with a detailed timeline that explains the changes to the Government’s pleadings, based on the changes to the issues that were raised in the process.

The Deputy First Minister’s recollection of the Lord Advocate’s evidence to our committee is correct. One of the things that the Lord Advocate would not disclose to the committee was whether an approach had been made by the Deputy First Minister or other ministers to ask the Lord Advocate’s view on whether it was in the public interest for that legal advice to be published.

I think that Mr Cole-Hamilton knows the answer to that, but I presume that he raises it so that I can confirm it.

The ministerial code prevents me from disclosing whether I have taken the advice of the Lord Advocate and from disclosing the sources of any legal advice that I have taken. Mr Cole-Hamilton knows the obligations that I am under; they cannot be casually dismissed because, if I dismissed them, I am sure that members would complain that I had breached the ministerial code by which I am held to account.

Over the course of more than two hours, the Lord Advocate responded to questions from the committee and gave detailed descriptions of the Scottish Government’s decision making and legal position at each stage of the process. During the meeting, he committed to write to the committee on specific points and stands ready to provide further information as required. Since the last debate on the issue in Parliament, significant further detail has been provided to the committee through the Lord Advocate’s evidence, so the Government has endeavoured to respond constructively to the debate in Parliament that took place in early November. No final decision has been made by the Government in our further consideration of the issue. I confirm that the issue was discussed with the Cabinet yesterday. The First Minister recused herself from that part of the meeting, as is appropriate. Given the seriousness of the issue involved, before the Government and I come to a conclusion, I will consult the Cabinet again.

I am reflecting on the arguments that were put forward in the previous debate and I will consider any new arguments put forward today that will help to inform the decision-making process.

The Government has made available to the committee significant detail on our legal position through the evidence that has already been provided by the Lord Advocate. This is not a straightforward decision. There is no clear precedent for the Scottish Government to waive legal privilege in these circumstances and there is real potential for negative consequences from such a decision. It would potentially create a new precedent that would potentially undermine the Government’s ability to receive legal advice in all candour that would enable it to take decisions during litigation in the future. Taking the time necessary to consider the significant issues raised by the request for release of our legal advice, including the precedent involved, is therefore only right and proper. To do anything else would not respect Parliament in this or future sessions, nor would it respect the significant issues of sexual harassment that lie at the heart of the debate.

I move amendment S5M-23445.2, to leave out from “notes that the legal advice” to end and insert:

“acknowledges that this complex matter is being actively considered by Ministers; notes that the right of private access to legal advice is a fundamental right under Scots Law, and recognises that, since that vote of the Parliament, the Lord Advocate has shared extensive detail of the Scottish Government's legal position with the Committee on the Scottish Government Handling of Harassment Complaints at its meeting on 17 November 2020, will be writing further to the Committee following that meeting, and stands ready to provide additional information as the Committee requires.”

16:51  

It is tempting to make the same speech that I made the last time we debated this issue, because in the past three weeks, absolutely nothing has changed—not one single thing. The cabinet secretary’s pace on the issue makes a snail look like a sprinter. As for the Scottish Government, it is treating the Parliament with contempt and it is treating with contempt the parliamentary committee that was set up to scrutinise its actions. The Scottish Government appears to be determined to withhold the legal advice that underpinned its botched handling of the judicial review. The outcome of that cost taxpayers just less than £1 million but, more important, it failed the two women who made complaints in the first place. They and other women who might come forward in the future are faced with a policy that has been successfully challenged in the courts and which, despite the years that have passed, has not been altered or used since. Shame on the Scottish Government for allowing that to happen.

Shame, too, on the Scottish Government for the position in which it has placed the Lord Advocate. He is an honourable man, placed in an impossible position. Five times I had to ask him a basic question that was allowed by the ministerial code, and five times he could not or would not answer. I bow to Murdo Fraser’s counting of the number of unanswered questions, which totalled 27.

As well as being Scotland’s senior law officer, the Lord Advocate is a member of the Cabinet. He is a minister, bound by the ministerial code. I was not asking him about the content of legal advice. It was a process question about whether the cabinet secretary had spoken to him following the vote in Parliament. Given the Lord Advocate’s discomfort, I can only assume that the cabinet secretary had not bothered to pick up the phone, because he had no intention of providing the information to Parliament. That is certainly what I understand the cabinet secretary told the Scottish National Party group meeting recently. He is simply refusing to hand over the legal advice.

The Scottish Government likes to think of itself as a world leader, and indeed it is: a world leader at dissembling, obstruction and secrecy. The latest example of that is information on the complaints handling process. It was promised to the committee for July. Then it was August. September and October sailed by and nothing was received. When the committee invited witnesses to give oral evidence to talk about the complaints handling phase, the Government refused. It said that the witnesses could not attend because the written evidence had not been received. Who, I ask, was responsible for not providing the evidence? It was none other than the cabinet secretary himself.

Would Jackie Baillie care to share with Parliament any of the detail of the correspondence that I shared with the committee about the obligations that I am under to ensure that, in supplying evidence to the committee, I do not end up in contempt of court?

I would be happy to share that. It is available on the website. However, I say to the cabinet secretary that he has had not just the time that the committee has been meeting. He has had 20 months since the committee was established to get his act together and deliver on this.

We are facing a complete and utter farce. The Scottish Government is a joke and should be embarrassed at how incompetent it appears to be. There have been attempts to blame the former First Minister for the delay. I would simply note, from their letters, which were published today, that his solicitors, Levy & McRae, received the documentation on 2 November and have been going through it since. They tell us that there are pages and pages of irrelevant material, that there is some new material that was not provided to the Court of Session, and that—surprise, surprise—some material is missing. Given that Levy & McRae will turn that around in a month, can the cabinet secretary explain to us why the Scottish Government, with all its resources, has taken more than five months past the original deadline of July to get the information to the committee?

I look forward to the cabinet secretary apologising to members, including his back benchers, for the incorrect briefing that they received, because it was patently untrue.

On 17 January, the First Minister promised that the committee would get whatever information it required. In light of the Deputy First Minister’s actions, it is clear that that was a hollow and meaningless promise. The Parliament voted by majority for the release of the legal advice, and it asked the Deputy First Minister to get on with releasing it. If he refuses to do so, he and his Government will be holding the Parliament in contempt. It is becoming increasingly evident that he has something to hide.

16:56  

Here we go again. As members have already stated, the Parliament expressed its will in unequivocal terms and voted on 4 November. I want to reflect on the question about timetables that Murdo Fraser asked the cabinet secretary. There are two questions that the cabinet secretary really needs to address. First, in principle, will he and his Government agree to release the advice? Secondly, if the answer to that is in the affirmative, can we have a conversation about timescales? However, he failed to answer that question.

Alex Cole-Hamilton asked the cabinet secretary whether he had requested that the Lord Advocate consider whether he was prepared to give his prior consent. Essentially, the answer that the cabinet secretary gave was the law officer convention, which is mentioned in paragraph 2.39(b) of the Scottish ministerial code. That paragraph states that the convention prohibits ministers

“other than in exceptional circumstances”

from disclosing

“the fact that legal advice has or has not been given to the Government by or sought from the Law Officers”.

The convention does not cover paragraph 2.40 of the code, which states that

“the Law Officers must be consulted”

if ministers are minded to release legal advice.

As many members have made clear, there is no doubt that, for the committee to discharge the responsibilities that Parliament has given it, it needs to have access to the legal advice. No one—not the cabinet secretary or any member of the Scottish Parliament—has suggested otherwise. How can an inquiry that, in substantial part, is concerned with a judicial review be able to assess the full circumstances of the matters that it is considering without sight of the relevant advice?

The conclusions that the committee eventually comes to when it reports could be anywhere on a spectrum, from the innocent to the malign, and it would be utterly inappropriate right now to speculate on that question. However, it serves nobody’s interests that its deliberations may be compromised by a lack of access to key information.

It is not helpful to speculate about what the advice may be, either. From personal experience, I am well aware that legal advice is just that—it is legal advice. In my recent defamation case, I did not follow legal advice at one key moment, and I am glad that I did not. For a defender in a civil action, there are always other considerations. In the case of the Scottish ministers, there were the legitimate interests of the complainers and the legitimate desire perhaps to see a point of legal interpretation tested in the courts.

Paragraph 2.30 of ministerial code states:

“the overarching duty on Ministers”

is

“to comply with the law.”

The law was, of course, a matter of dispute between Mr Salmond and the Government, and the court was the only place that could resolve that question.

The other duty that is imposed by paragraph 2.30 of the ministerial code is that ministers should

“ensure that their decisions are informed by appropriate analysis of the legal considerations and that the legal implications”

are properly considered in all decisions. That is not controversial, and it gives ministers a fair degree of leeway. As decision makers, they are not bound to follow legal advice any more than anyone else is. However, the judicial review was conceded, and complainers being badly let down by a process that was found to have been unlawful is at the heart of the matter. It is the committee’s job to ascertain why that happened. It simply cannot do so without sight of the legal advice.

In closing, let me be crystal clear about one thing. Paragraphs 2.38 to 2.41 of the ministerial code prohibit ministers from publishing legal advice unless it is deemed to be in the public interest and unless the consent of the Lord Advocate has been obtained. Last time, I argued that the Parliament is a far better arbiter of the public interest than ministers whose actions, in this instance, are being scrutinised by the committee. Therefore, where Parliament has instigated an inquiry into apparent serious failings in Government procedures and has voted to uphold the committee’s request for legal advice, it is simply inconceivable that the Lord Advocate would withhold consent unless there were compelling reasons in relation to, for example, the integrity of the justice system. However, this was a judicial review of a public authority’s decision. It was an important judicial review but a straightforward civil process whereby a decision was being challenged in court. That is all.

There is only one party who stands in the way of releasing the legal advice and one party who is defying the will of the Parliament and the committee. His name is John Swinney.

17:00  

We should not be having this debate. I say to Government members who will likely criticise the use of parliamentary time for a topic such as this in the middle of a pandemic: I agree, but this is on the Government.

The Parliament has expressed a clear will that it wishes to see the legal advice regarding the conduct of the judicial review that was raised by the former First Minister. It did so three weeks ago, yet we are still waiting. The SNP Government is dangerously close to standing in contempt of the chamber.

Why does the legal advice matter? Because in its pages we will finally see the anatomy of a collective thought process that led to the collapse of a Government case at a cost to the taxpayer in the order of £1 million but, more importantly, because it will show why the women at the heart of this were denied a fair hearing and access to justice for complaints that will now most likely never see the light of day again.

The Committee on the Scottish Government Handling of Harassment Complaints has heard from those in the Government who were most connected to the judicial review, including those who head up the Government’s legal services division, the permanent secretary, who was the first of two named responders in the petition, and the Lord Advocate. However, although the Government’s legal position is a matter of public record, the legal advice is still shrouded in abject mystery.

The Government first sought the advice of independent senior counsel in September 2017, shortly after the original petition was launched. Before a judicial review is fully commenced, permission for it to be heard must be granted by the court. The criteria for granting permission to proceed hinged on the court’s belief that the petition in the name of Alex Salmond had a realistic prospect of success. Permission was duly granted by the court and the Government did not contest that ruling. From that, we can infer that, right out of the traps, the Government understood that there was a real prospect of defeat, with all that that entailed for the public purse and the complainers—but still, it decided to proceed.

Legal advice is never offered in absolutes. A Queen’s counsel will never tell a party that they will win a case. Instead, they will offer an assessment of the balance of probabilities, with the chance of success weighed against the risk of defeat. In the foothills of this judicial review, the Government believed that it was facing a challenge to the procedure. However, as the weeks dragged on, it became clear from the incremental retrieval of evidence by the Government—sometimes forcibly brought out by the court itself—that the Government was far more exposed on the application of that procedure by the civil service on the grounds of apparent bias.

That drip-drip release of emails and correspondence towards the ends of 2017, which would ultimately lead to the collapse of the case, was a shocking way for the Government to have behaved towards the court. Fundamentally, it changed the kind of difficulty that the Government was facing and, very probably, it gave cause for the Government’s senior counsel to threaten to resign.

Without the production of legal advice, the Salmond inquiry cannot hope to discharge its responsibilities in full. It will leave yet another tang of doubt around the actions of the First Minister, who we now know had ultimate sign-off over the tactics of how the judicial review was handled. The optics of that are terrible for the SNP and everything about it reeks of a cover-up.

It has been three weeks since the Parliament demanded the release of the advice and the Government remains defiant to the supremacy of the chamber. Our patience is at an end. Should the Deputy First Minister not deliver what we seek in short order, he may well face another kind of motion in the coming days—one that tests the confidence of members and those responsible for blocking the will of the Parliament.

I am conscious that this is a debate, so I have given as much time as possible for interventions. However, we are pushed for time, so members have only four minutes for speeches, please.

17:04  

Three weeks have elapsed since the Scottish Parliament agreed to a motion calling on the Scottish Government to publish all the legal advice that it received regarding the judicial review taken by the former First Minister Alex Salmond. In response, the Deputy First Minister said that

“ministers always seek to respect the decisions that are taken by the Parliament”,

and that he would

“now consider the implications of the motion”.—[Official Report, 4 November 2020; c 90.]

The committee specifically asked the Scottish Government to provide its legal advice by Friday 13 November. That deadline was not met, and the committee does not consider the Deputy First Minister’s explanation for that to be acceptable.

Since then, the Deputy First Minister has been very busy. Last Thursday, he refused the committee’s request to take oral evidence from two civil servants on the Scottish Government’s handling of complaints, on the pretext that they might inadvertently breach a court order or undertaking. The convener replied in writing on behalf of the committee, stating that that was “unacceptable”, given that

“it is the Scottish Government which has put its own employees in this position.”

On 3 November, Paul Cackette, the former director of the Scottish Government’s legal services, told the committee that it would be possible to calculate the approximate cost of the time that Scottish Government lawyers put into working on the judicial review, and that he could and would do that. With the scale of the costs incurred by the Scottish Government’s decision to contest the judicial review already confirmed as being more than £630,000, it is now apparent that the actual cost must be nearer to £1 million, instead of the £500,000 that the Scottish Government originally acknowledged. Once again, the Deputy Minister stepped in. On 13 November, he wrote to the committee to clarify that it was not possible to provide an accurate figure for the total cost of the legal advice given to the Scottish Government.

A very distinct pattern has emerged of the Scottish Government constantly thwarting the committee’s efforts to fulfil the inquiry’s remit—and now, it would seem, even the will of the Parliament—because, quite simply, it thinks that it can.

The committee’s convener has voiced her frustration at the continued and unacceptable delays that the committee has faced as a result of the Scottish Government’s behaviour. As deputy convener, my concern goes deeper; it raises the issue of trust. The legitimate criticisms that are levelled against the Scottish Government are made against the background of the former First Minister and others alleging a conspiracy against him. This is in a modern, supposedly democratic Scotland, where the judicial review was conceded by the Scottish Government on the basis that its handling of the harassment complaints procedure against the former First Minister was unreasonable and “tainted by apparent bias” and where the head of our independent prosecution service is also a member of the Scottish Government and is its chief adviser on legal matters, with collective responsibility for a failed judicial review.

The Scottish Government has serious questions to answer and information to release without further delay or obfuscation. It must start today by releasing counsel’s advice and the other legal advice on the judicial review that it received. The complainers caught up in this mess, the general public and our democratic process demand nothing less.

17:08  

I start by agreeing with Murdo Fraser when he sympathised with the complainers, which was entirely proper.

Let us look at precedents in relation to the disclosure of legal advice. It is worth saying that these precedents all stem from a period when Jackie Baillie sat in the Government and Alex Cole-Hamilton’s colleagues sat beside her.

Answer number 1 was to Alex Neil:

“The Scottish Executive does not generally disclose the legal advice it may have taken on any particular matter. Any such advice would, in any case, be confidential.”—[Written Answers, 14 March 2006; S2W-23743.]

Answer 2 was to me:

“Our policy is not to publish the legal advice we receive, this being covered by solicitor-client confidentiality.”—[Written Answers, 18 January 2007; S2W-30908.]

Answer 3 was to Christine Grahame:

“certain categories of information are exempt from the commitment to provide information ... This includes legal advice.”—[Written Answers, 11 February 2003; S1W-33541.]

Finally, answer 4 was to Fergus Ewing:

“I am not prepared to divulge the terms of the legal advice to Scottish ministers and I am unable to provide the legal advice obtained”.—[Written Answers, 15 June 2004; S2W-08398.]

The Tory motion asks for the Government to provide the legal advice “without any further delay”. A look at the Tory record on disclosing information might tell us whether today’s motion represents gross hypocrisy, opportunism or legal blindness.

One way of learning about what is going on in Government is via freedom of information. The freedom of information legislation is particularly dear to me because the training material that was prepared for officials contained a quote from one of my parliamentary speeches on the subject.

I will give some numbers that illustrate how the Tories, to use a word in their motion, “respect” honouring such requests only in the breach. The percentage of requests granted in full by the Tories in government has declined every year since 2010, from a high of 62 per cent in 2010 to 44 per cent in 2019. The percentage of requests withheld in full has steadily increased from 21 per cent in 2010 to 35 per cent in 2019. Last year, United Kingdom Government departments upheld their original decision in 83 per cent of internal reviews—that is the highest proportion in the past decade. The trend towards greater secrecy in the UK Government is unmistakable, and it has been led by the largest and most powerful Whitehall departments. In the past five years, the Cabinet Office, the Treasury, the Foreign Office and the Home Office have all withheld more requests. I got those figures from a report that was published yesterday by openDemocracy, which reveals that Tory minister Michael Gove’s department has a skunk team that was specifically established to prevent us from knowing what goes on in the Tory Government.

I have not been able to find a single example of legal advice being published, north or south of the border, where the matter relates to litigation. Yes, Governments do occasionally publish legal advice—to be fair to the Tory Government, it did so in 2018 in relation to advice on Brexit—but never advice relating to litigation.

The protection of legal professional privilege is vital to all parties to legal actions. The demand that is being made in relation to this piece of legal advice is simply a cover for the fact that the Tories are unable to properly question witnesses.

At the committee’s most recent meeting on 17 November, the Lord Advocate said:

“That will not prevent me from giving evidence to the committee today about the Government’s legal position from time to time in relation to the judicial review.”—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 17 November 2020; c 2.]

Murdo Fraser said that the Lord Advocate refused to answer 27 times, but that is not correct. Only three questions were asked of him, and he repeatedly gave the same answer. The Tories’ failure today lies in them not finding the right questions. After all, the Lord Advocate said that he would answer questions about the Government’s legal position. Because they do not have the questions, we can be certain that seeing legal advice could not answer their questions.

Gross hypocrisy, opportunism or legal blindness? All three, Presiding Officer, all three.

17:13  

Here we go again. For the second time in three weeks, we are having a debate that concentrates on the release of legal advice pertaining to the judicial review by the former First Minister, Alex Salmond. It is deeply regrettable that parliamentarians from across the chamber are again calling for the publication of that evidence, and it is quite clear that the Scottish National Party and Scottish Government continue to delay its publication.

It is unacceptable for John Swinney to say that he will consider the issues raised in today’s debate. At the end of the previous debate, when the vote on the motion had been won, Mr Swinney stood up and said that he would consider the result of the vote. It is deeply inappropriate for him to then tell Parliament three weeks later that he will consider the issues. It shows that there is a trail of obstruction and cover-up that lies at the heart of the Scottish Government’s conduct on the issue.

When the issue first came to the fore 20 months ago, the First Minister stood where John Swinney sits just now and promised full transparency and full co-operation. What have we had? We have had delays, obstructions, cover-up, witnesses refusing to answer questions, witnesses having to change their evidence and the Deputy First Minister blocking two witnesses from coming to the committee. That raises deep and fundamental questions about accountability and the democratic process within the Scottish Parliament as an institution.

The other point that needs to be made is that the motivation of the SNP and the Scottish Government is political. They are not motivated by legal matters. It is clear that they are deeply concerned about what will be revealed about the Government’s conduct in the handling of the complaints against Alex Salmond and how that will reflect on members of the Government and the SNP. That political motivation is why the way in which the Lord Advocate has been compromised is inappropriate. Anyone looking at the Lord Advocate’s performance at the committee can see how difficult and uncomfortable it was for him. Basically, he is head of the Crown Office, but has to provide advice in a political context to members of the Government. That is the position that he has been put in, and it is deeply inappropriate.

One of the key issues that has come out in the debate is that publication of the legal advice and all the requests that the committee has made are in the public interest. There are two reasons for that: the £630,000 cost to the public; and the fundamental issues around the way in which the complainers were let down by the Scottish Government’s handling of the process.

It is time that that Parliament was treated properly by the Government, and not with contempt and disrespect. It is time that we had an end to the culture of secrecy. I say to the Government: publish the information with full transparency and let the committee get on with its work and reach its conclusions.

17:17  

Yesterday, we saw the Parliament at its finest, working across parties to pass an important piece of legislation for people across the whole of Scotland. It gave us a glimpse of what this place is capable of being and doing.

Today, unfortunately, we are back to normal—political opportunism, point scoring and desperate attempts to gain some headlines as we head towards the Scottish Parliament elections, and as support for independence continues to grow.

We will hear a lot today about the integrity of the Government, the Deputy First Minister, the First Minister and anyone else those members can drag down to the gutter with them. But please do not be fooled—this is not about integrity; indeed, it is the exact opposite. Eight days ago, the Lord Advocate told the committee that the DFM was still considering whether he should make the advice public. There is a complicated process going on, which the Opposition parties are well aware of—but why give up the opportunity to have a sly kick at your opponents when you can?

Presiding Officer, if you want to see just how opportunistic and hypocritical is the motion from the Scottish branch of the Westminster Tories, ably supported by their better together team mates, let me mention just two names: Priti Patel and Robert Jenrick. So far, there is no sign of the report that shows the Home Secretary to be a bully, for which crime her Prime Minister—who, to be fair, I note had previously been caught on tape discussing a journalist being beaten up—fully supported her.

As for Mr Jenrick, let us just say that there were many options to select from, but this one is extremely timely. It was reported on 11 November that officials are refusing to release the justification for a controversial £25 million handout to a cabinet minister’s constituency, which was approved by a colleague. His department’s top civil servant cleared the grant, but has agreed to release only

“a summary of his assessment provided in confidence”

to the House of Commons Public Accounts Committee. Transparency? Openness? Nah! Hypocrisy? Tories? Never!

On a point of order, Presiding Officer, I am sure that you are aware that standing orders require members to address the terms of the topic of the debate. We have before us a motion and amendments. Are you able to advise whether it is the wording of the motion or of the amendment that the member is currently addressing?

I have been following the member’s contribution with close interest, Mr Fraser. He has been making a point. However, he has now made his point with his comparison with other ministers, and he would be best served by getting back to the main point of the debate.

Thank you, Presiding Officer—although I have to say that pointing out the hypocrisy of the Tories is very important to what the debate is all about.

As my colleague Stewart Stevenson said, there have been a lot of examples in the Scottish Parliament of previous Governments not providing legal advice. It is a long-standing practice across the United Kingdom. The Deputy First Minister has already said that he will respond to the request and is still considering his response. However, we have to remember that the law officers have the final say on whether their advice can be released.

What do we get out of the debate? Some members will vote for the motion, knowing that it will change nothing, except that they will have a press release to put out to their local media, and to speak to on radio and television. In my view, the debate has been a waste of parliamentary time; it has simply been an opportunity for Opposition politicians to discuss an on-going parliamentary committee inquiry while shouting “SNP bad”, and it helps absolutely no one to move forward on the so-called substance of the motion, which I have no doubt the DFM will deal with in the near future.

Yesterday was a good day for the Parliament. Today, in my humble opinion, is not. Let us have more yesterdays in the future.

17:21  

As members have said, here we are again. I had thought that the SNP would, after it lost the crucial vote in the chamber three weeks ago on a motion that had cross-party backing, surely reconsider its approach, and release the legal advice that it was given on the Salmond judicial review. The Scottish people deserve nothing less. After all, £500,000 of taxpayers’ cash has been wasted on the SNP Government’s botched handling of claims of sexual harassment. In fact, as we heard in the chamber today, the cost could be nearer £1 million. Even £500,000 would be enough to pay the annual salaries of about 15 registered nurses in Scotland.

However, perhaps my optimism got the better of me. The SNP continues to dig in its heels, shamefully ignoring the voices of committee members and MSPs who simply want the issue to be resolved. We want to move on. Unfortunately, this latest move is symbolic of the Government’s arrogance and of its genuinely contemptuous attitude to the Scottish Parliament. This Parliament, which is supposed to represent openness and transparency, will not stand for it. Therefore, why should the people of Scotland? It is that simple.

The investigative committee also deserves full transparency and co-operation from the Scottish Government. However, it has become all too clear that this Government has made every attempt to hinder the committee’s ability to fulfil its duties. The Deputy First Minister’s blocking of two key witnesses is just the latest example of obstruction in a long-running pattern of behaviour from the SNP leadership. What on earth have they got to hide? The release of the legal advice is an essential step in providing the committee with the ability to assess the full picture. There should be no ifs and no buts—the Government must hand over all the necessary documentation so that the committee can thoroughly investigate, and do the job that it has been assigned.

There is clear precedent for the Scottish Government releasing legal advice, given that it has done so on various occasions, ranging from the trams inquiry to the UK infected blood inquiry. At Westminster, there has been a litany of calls from SNP members of Parliament for the UK Government to release legal advice on a series of issues. Whether it is the European Union withdrawal agreement, the Benn act or Syria air strikes, the SNP has certainly not been shy in demanding that others release legal advice when it thinks that that would suit its goals. That is, quite frankly, breathtaking hypocrisy, and we will continue to call it out.

I am afraid that the Government’s current position cannot stand any longer. The public are frustrated that the debacle has not been brought to a close.

As has already been mentioned, the Scottish Parliament provided a clear instruction to the SNP Government to release the legal advice immediately. That call has, unfortunately, fallen on deaf ears, to the detriment of the Parliament’s reputation. I agree with Douglas Ross: if the SNP continues to dodge scrutiny and ignore Parliament, legal action might be necessary in order to force it to come clean. For the time being, however, power remains in the SNP’s hands.

There is still time to do the right thing and to co-operate fully with the committee, which the First Minister had previously promised that the SNP Government would do. It is high time that that commitment was honoured. I hope for the sake of the Parliament and people of Scotland that the SNP chooses to do that, before it is too late.

17:25  

I begin by reiterating what I said in the debate on 4 November. I made three points then on the issue of legal advice, and I wish to repeat them.

First, as has been mentioned by other members, the protection of legal professional privilege has been relied upon by Scottish and UK Governments of all political hues, and that must be respected.

Secondly, the continued existence of legal professional privilege for the Scottish Government helps to ensure the rule of law and the administration of justice.

Thirdly, the Scottish ministerial code recognises the existence of legal privilege. It is clear that ministers can say that legal advice has been obtained, but must not divulge it. The exceptions that were made previously were on issues of public policy, which is not the case here.

In thinking about the debate, in a week when we have seen further evidence of the effectiveness of minimum unit pricing, I reflected on my time as a minister. In particular, that got me to reflect on the importance of the legal advice that we, as ministers, received at that time.

I have also reflected on whether that legal advice might have been different, had the lawyers who provided it been concerned about its possible release. Given the legal issues that are involved and the subsequent legal challenge, I think that I am right to reflect upon that. I do not know whether that legal advice would have been different, but I do know that it is crucial that those who give advice to ministers do so in a full and frank manner, and are not affected by concerns about its subsequently becoming public. Whatever ends up happening in this case, it is crucial that no precedent is set that could affect future important policy decisions. I hope that the Government will reflect on that.

The ministerial code is very clear about the public interest in ensuring that the Scottish Government can have confidential communications with its lawyers. I understand that the Lord Advocate shared extensive detail of the Scottish Government’s legal position with the Committee on the Scottish Government Handling of Harassment Complaints at its meeting on 17 November. As the amendment in the name of John Swinney confirms, the Lord Advocate

“will be writing further to the Committee ... and stands ready to provide additional information as the Committee requires.”

I hope that the Parliament will not have to spend more debate time discussing the issue, given that we are in the middle of a pandemic. There are far more pressing issues for the Parliament to consider.

17:28  

Now we know. We know from today’s speeches, from the briefings to the SNP group and from the reports to their meetings by John Swinney that the Scottish Government has no intention of releasing the legal advice. It has utter contempt for the Parliament and for the Committee on the Scottish Government Handling of Harassment Complaints. It is likely that the Parliament will again vote this evening for the advice to be released, and it looks like that will be completely ignored.

I remind the SNP that, when the UK Government refused to reveal its legal advice on Brexit, the SNP supported a motion tabled by Labour to have that legal advice revealed. It then went on to support a contempt of Parliament motion, which demanded that the UK Government reveal its legal advice on Brexit. That motion was won and the Cabinet Office published the full legal advice the following day. Will the Deputy First Minister publish the legal advice—at the very least the written opinions from the senior counsel, Roddy Dunlop QC?

Rumours abound that senior counsel threatened to resign in the latter stages of the judicial review, so bad was the Scottish Government’s case, yet the civil servants were determined to plough on regardless. I have given the example of the SNP’s support for the release of legal advice in the UK Parliament, but it does not support that release in the Scottish Parliament where it is in control—a clear-cut case of double standards.

Of course, there is precedent. The Scottish Government has released legal advice to the UK bloods inquiry, the child abuse inquiry and the trams inquiry. I should point out that the trams inquiry is not even a formal public inquiry, so why is a parliamentary inquiry a lesser consideration? Why are the women at the centre of this matter, and those who might come forward in the future, not considered more important than trams?

It is essential to understand what went wrong, the grounds on which the policy was challenged, and when it was conceded, in order to learn lessons for the future. The committee needs to see the legal advice in order to do just that. It is central to the committee’s remit, which the SNP agreed with when the committee was established.

I will talk again about the obstruction that the committee faced. I raised the issue previously but will do so again, as it perfectly illustrates how bad things are with the Scottish Government. Early letters from John Swinney said that the Government could not share any information from the judicial review as that was a matter for the Court of Session. That simply was not true. It took the attendance of the Lord Advocate, giving evidence under oath, and a letter from the committee to the Court of Session to expose the Scottish Government’s complete lack of candour. That was not ignorance of how the courts operated, but deliberate obstruction.

I do not know why I continue to be surprised. By its every action, the SNP demonstrates the secrecy and the lack of transparency and openness at the very heart of Government. If John Swinney ignores the motion, he is quite deliberately holding the Parliament and the committee in complete contempt.

I was never a believer in conspiracy theories—they are just a tad too far-fetched for my taste—but the more the SNP refuses to co-operate with a parliamentary committee, the more I think that there might just be something in them. The one thing that one can be sure of is that, despite Mr Swinney and the Scottish Government’s best efforts to dissemble, obstruct and hide everything under a veil of secrecy, we will get to the bottom of this, and the truth will out.

17:32  

I will reflect on a couple of the contributions, because they illustrate the arguments that I gave in my opening speech.

Stewart Stevenson brought his deep analytical knowledge of most subjects to bear on a number of previous responses, from none other than Jackie Baillie when she was a minister, on the question of the unwillingness of Government to release its legal advice for reasons of good governance.

Jackie Baillie rose—

I will develop the point and happily give way to Jackie Baillie.

I made the point earlier that ministers today have a duty to ministers in the future, which is that we do not create precedent that can essentially weaken the ability of Government to exercise its functions. Jackie Baillie, in her responses to the various questions that Stewart Stevenson cited, did exactly that in the early part of this century, in order to establish the principle of maintaining confidentiality over legal advice to enable ministers to exercise exactly that responsibility in future years.

The fundamental difference that John Swinney fails to mention is that we never faced, and lost, a vote in the Parliament and were never in a situation in which the Government withheld legal advice that the Parliament demanded.

That is not the fundamental point; the fundamental point is the maintenance of legal professional privilege, which has existed in law for all time, and which, as a minister, Jackie Baillie was asserting. That is relevant, as set out by Shona Robison, who was the minister who presided over much of the handling of the arguments around minimum unit pricing. The Government relied on legal advice in relation to the successive legal challenges to that policy. In her contribution, Shona Robison raised a legitimate concern about whether that advice would have been as robust and as accepting of the risks that are inherent in judicial review if there had been a fear of the advice becoming public.

The Government’s legislation was successful at every stage of the legal challenge, but there were plenty of commentators at the time who said that the Government’s legal position was weak and vulnerable. However, in the privacy of the exchange of advice and information—which one week might have been strong, and another week might have been weak—fundamentally, we had the ability to formulate a position that was successfully defended. That is what is potentially jeopardised by the creation of a new precedent in that area of activity.

Can we take it from the cabinet secretary’s observations that he has no intention of publishing any legal advice in relation to the judicial review?

I am simply airing to the Parliament the issues with which I have to wrestle. I am the minister who will have to decide on the question, and I am simply airing to the Parliament the factors that I have to consider.

I say to James Kelly that the Lord Advocate is a man of entirely independent mind. I would not be able to tell the Lord Advocate what to do, say or think in any circumstance. Anybody who believes that I have the ability to do so is mistaking the Lord Advocate for somebody else. He is appointed to be an independent legal adviser and independent head of the prosecution service, and there is nothing that I can say to dictate to or direct him, or to restrict his opinions on particular subjects.

The Lord Advocate himself has made it clear that the legal position of the Government took account of the range of legal advice that was received from internal and external sources, and he has gone to great lengths, while maintaining legal professional privilege, to explain to the committee the Government’s response to a number of different questions about mediation, the strength of the litigation, the issues that were being considered and the decisions that the Government took in that respect.

The Lord Advocate has addressed the issues at committee, the Government has been open with the committee with thousands of pages of documents and information, and there is more on the way. We intend to ensure that we fulfil our obligations to co-operate with the committee, but we are reflecting carefully on the issues around legal professional privilege, because there are inherent dangers that we create precedents that could undermine the exercise of good government in the years to come. Nobody in the Parliament will thank the Government for creating a precedent that in any way jeopardises the ability to exercise good government, today or in the future.

17:38  

I refer members to my entry in the register of members’ interests as a member of the Faculty of Advocates.

I will begin on a bit of a tangent, and I hope that the reason for doing so becomes clear. There is a well-known play called “A Man for All Seasons”, which tells the story of Thomas More, who, as members will know, was Lord Chancellor of England. In the play, there is a famous scene in which Thomas More debates the distinction between the law on the one hand and morality on the other. He says:

“I know what’s legal, not what’s right. And I’ll stick to what’s legal.”

He also says:

“The currents and eddies of right and wrong ... I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.”

For Thomas More, there was a firm difference between what is legal and what is right. The two are not always the same. Of course, in the end, he went to his death obeying his conscience and doing the right thing, despite the passage that I have just read out. In the final reckoning, that was ultimately more important.

So, we find ourselves here, in the debate. As a matter of law, John Swinney is correct. In Scots law, there is an indisputable right for any recipient of legal advice that is tendered to them to keep that advice private—it belongs to the client.

However, one of the first lessons that is learned by lawyers who tender advice is that anything can happen to that advice. It is not theirs. It does not belong to them. It can be published. That answers the points that Shona Robison and John Swinney made. Any lawyer has to give frank, informed and competent advice—that is their responsibility—but anything can happen to it thereafter.

There is a right—legal professional privilege—and the law states that an individual cannot be forced to waive that right. That is what the law says, but what about the other deeper question that is nagging away: what is the right thing to do?

We are not here to analyse the law or to adjudicate on it. We are not a court; we are a Parliament. We are a Parliament that decisively made its views known about this matter just three weeks ago. We are a Parliament whose committee that was specifically tasked with investigating this affair has had its requests to see the legal advice consistently refused and its deadlines rejected. We are a Parliament whose votes the Scottish Government, on a whim, sometimes decides to respect and sometimes decides to ignore. We are a Parliament that was told by Nicola Sturgeon:

“The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request.”—[Official Report, 17 January 2019; c 14.]

That was an unequivocal statement.

It is absolutely clear from the ministerial code that the Government can release the legal advice. As Andy Wightman said, the code explicitly provides that ministers can disclose the source or content of legal advice if they feel that the balance of the public interest lies in doing so.

As others have said, on several occasions, the Scottish Government has published legal advice under that frame of provision. To deal with Shona Robison’s point, I note that such legal advice was not just about public policy; it was about things such as infected blood, the child abuse inquiry and trams—investigations into hugely contentious issues involving public funds.

I would be grateful if Mr Cameron would reflect on the point that the examples that he has cited are examples not of litigation but of the conduct of public policy, and on the significant differences that arise between them.

There are no differences at all. On many occasions, SNP parliamentarians have demanded that other Governments publish legal advice that is given to them.

I do not need to rehearse at length why it is plainly in the public interest for the advice to be disclosed. Other members did so far more eloquently today and three weeks ago. Let me focus on the essential points.

Andy Wightman was absolutely right that the legal advice is central to this matter, especially in relation to the timing of the Government’s settlement of the case coming so late in the day, with all the consequent expense to the taxpayer. We know that, during the judicial review, there were more than 10 consultations between counsel and Government.

We know that the expenses that were awarded to Mr Salmond were at the highest level possible and not on the usual basis. That level of expenses is very rare. It arises in only two instances: when litigation has been conducted unreasonably or incompetently. For any litigation lawyer, that is a damning judgment. That is another reason why we need to see the legal advice.

Let me take issue with one thing that the Deputy First Minister said. He said, “Oh well, the advice is in the pleadings. We have released those, and that discloses what the advice was.” That is not right. Parties set out their argument in their pleadings—the facts that they seek to prove and the remedies that they seek or refute. They categorically do not contain legal advice. The advice behind the pleadings might be the complete opposite.

As Margaret Mitchell said, this is a tale of shameful obstruction by the Government in terms of supplying any documentation, let alone legal advice. The convener of the committee, who is a colleague of Mr Swinney, could not have been clearer about that in her letters.

Of course, following the vote three weeks ago, we should not be here. No Parliament should have to express its view twice on such a serious matter, but here we are again having to force the Government’s hand, because it seems that the Government wishes to bury that legal advice a thousand feet deep.

I return to the point about doing what is right, which I made at the start of my speech. What should the Government do? I think that, in his heart of hearts, John Swinney knows the answer to that.

Let us remind ourselves what this is about, lest that is forgotten, because one of the tragedies of this whole affair is that that is too easily forgotten. First and foremost, it is about the private complaints of two women about sexual harassment. It is also about at least half a million pounds of public money. Most striking, it is about the conduct of four specific individuals: the most senior civil servant in Scotland, the Lord Advocate, the former First Minister and the current First Minister. It is a story involving four of the highest office holders in the land. If all that does not engage the public interest, what does?