Rule of 85

Question Time — Scottish Executive — General Questions – in the Scottish Parliament at 11:40 am on 27th April 2006.

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Photo of John Swinney John Swinney Scottish National Party 11:40 am, 27th April 2006

To ask the Scottish Executive what plans it has to review its current stance on abolishing the rule of 85. (S2O-9595)

Photo of Tom McCabe Tom McCabe Labour

The Scottish Executive has reviewed and tested the legal advice and we have concluded that the rule of 85 has to be removed to be consistent with European Council directive 2000/78/EC. We are in discussions with trade unions, people who are employed in local government and other people who are covered by the scheme, because we recognise that its removal creates an anomaly.

Photo of John Swinney John Swinney Scottish National Party

The minister will be aware—because he took part in it—that we had a constructive debate on the matter last week in Parliament. In the interests of ensuring that the debate can continue, is the minister prepared to publish the legal advice to which he referred, which somehow undermines what is, in my opinion, pretty persuasive legal advice that is contrary to the position that he has outlined? Its publication would enable us properly to scrutinise the advice on the basis of which the Executive is operating, and would ensure that individuals who are involved in the negotiations with the Executive have confidence in the quality of information upon which ministers have made their decisions.

Photo of Tom McCabe Tom McCabe Labour

The member will be aware that it is in the nature of such matters that different legal opinions can be procured by different individuals. The Scottish Executive has done all that it can to ensure that the legal advice that is available to us is robust. We have tested the legal advice, and it remains consistent.

Although we have made available to the trade unions and employers a summary of the legal advice and the rationale that lies behind it through the discussions that we are having on the subject, there are very good reasons why we will not publish the legal advice. When the Scottish Executive enters court, it does so on behalf of the Scottish taxpayer. We are not in the business of going into court with one arm tied behind our back, or of sending our legal representatives into court in that way. Legal arguments have to be advanced in court. It would be unfair on the Scottish taxpayer to adopt a policy of making the other side aware ahead of proceedings of all the legal advice that is available to us.