Committee on the Scottish Government Handling of Harassment Complaints [Draft]

Meeting date: Tuesday, March 2, 2021

Official Report 668KB pdf

Decision on Taking Business in Private

Good morning, everyone, and welcome to the 14th meeting this year of the Committee on the Scottish Government Handling of Harassment Complaints. Our first agenda item was to consider whether to take evidence in private from the Lord Advocate before hearing from him in public.

The committee has always sought to carry out its work in a way that is open and transparent, which is not always easy, given the legal constraints on us, especially in relation to Lady Dorrian’s order protecting the anonymity of complainers.

I am grateful to the Lord Advocate for his offer to provide evidence in private, which I believe would have allowed the committee to understand in more detail the background to the publication and redaction of the former First Minister’s submission on the ministerial code.

However, despite the majority of the committee wishing to proceed in that way, in the absence of unanimity in the committee I have agreed with the Lord Advocate that we should move straight to evidence in public.

I understand that the deputy convener wishes to say something at this point.

I say at the outset that I welcome the Lord Advocate’s decision that today’s evidence session, in which he is giving evidence as the Scottish Government’s chief legal adviser, will be held fully in public.

Before that, however, he must first fulfil his duty as head of Scotland’s independent prosecution service and give his view on whether it was justified for the Crown Office and Procurator Fiscal Service to send the letter to the Scottish Parliamentary Corporate Body in relation to the evidence from Alex Salmond that was published by the Parliament.

Last week, the Lord Advocate confirmed to Parliament that, in that role, as head of the prosecution service, all decisions that are taken by him and by the Crown Office and Procurator Fiscal Service are taken in the public interest. As head of the Crown Office, the holder of that office is responsible for all decisions that are taken by the Crown Office. The Lord Advocate and the Lord Advocate alone, regardless of whether they have recused themselves from any decision, has a duty to give their view of the decision and to explain whether it was justified. If any holder of that office, as head of Scotland’s independent prosecution service, is unable to fulfil that duty, their position clearly becomes untenable.

In order to properly inform our next evidence sessions, and in the interests of openness, transparency and accountability, the Lord Advocate must now fulfil that duty.

Thank you, Ms Mitchell. There are obviously questions in there that you wish to put to the Lord Advocate. I suggest that that be done after agenda item 3 actually starts and oaths have been taken. I shall come to you first, if you wish me to do so.

Yes. I would like to ask the Lord Advocate, as head of the prosecution service, his view on whether it was justified for the Crown Office—

Ms Mitchell, we have been through this. That question should be put to the Lord Advocate when we have moved on to the appropriate agenda item and oaths have been taken. When the committee proceeds with the business of agenda item 3, I shall call you first.

Can I have clarification, convener? When taking the oath, will the Lord Advocate do so, in the first instance—this is the crucial point—as head of Scotland’s independent legal service, as opposed to appearing as the chief legal officer for the Government? That conflict of roles has caused the problems, so we need to be clear about that.

I suggest that you ask those questions under agenda item 3, after the Lord Advocate has taken the oath. I am not a legal person, but my view is that the oath is taken by the person; the person is agreeing to tell the truth. If you wish to put that to the Lord Advocate, you should do it under agenda item 3, when we move on to questioning. As I said, I will take your question first. I am sure that the Lord Advocate will address it.