Presiding Officer, this afternoon the Scottish Conservatives are dividing our debating time into two parts. Shortly, my colleague Donald Cameron will lead a debate that looks at the crucial issue of the impact of the Covid-19 pandemic on our care homes. In advance of that, I am leading this short debate calling on the Scottish Government to publish the legal advice that it obtained in relation to the judicial review case taken against it by Alex Salmond in connection with its complaints procedure.
I say at the outset that I regret that we are having to spend debating time in Parliament on such an issue. It is necessary only because of the failure of the Scottish Government to respond to consistent calls from members of the Committee on the Scottish Government Handling of Harassment Complaints, speaking unanimously and on a cross-party basis, to publish vital information that the committee believes is essential to allow us to do our work. That led the committee convener, Linda Fabiani, to state on 29 September that the committee had been “completely frustrated” by the lack of evidence being provided from the Scottish Government, among others. A vital component of the missing information is the legal advice that informed the Scottish Government’s decision making—specifically, its decision to defend the judicial review pursued by Mr Salmond.
We know that Mr Salmond had counsel’s opinion, which said that his prospects of success in that case were substantial. We know that the Scottish Government conceded the judicial review, admitting that Mr Salmond was correct. We also know that the award of expenses paid to Mr Salmond—more than £500,000 of taxpayers’ money—was at the highest level available in the circumstances, and is a level of award made only when the defence has been conducted, in the words of Lord Hodge, “either unreasonably or incompetently”. We therefore know that something went far wrong with the Scottish Government’s legal case, and we need to understand why that happened and what led to such a loss of public funds. It is surely a matter of legitimate public interest to understand such a catastrophic failure within the Scottish Government that cost the taxpayer so dearly.
There is a long-standing convention that legal advice given to ministers is confidential, and that convention exists for good reasons. However, it can be overridden when there is an overwhelming public interest, and I believe that that applies in this case. The Scottish Government has published its legal advice on a number of occasions: in the contaminated blood scandal case; on the Scottish child abuse inquiry; and in relation to the Edinburgh trams inquiry. The Government has chosen to publish legal advice in the past, and there is no restriction on it doing so.
“The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request.”
She went on to say:
“My commitment is that the Government and I will co-operate fully with it”.—[
, 17 January 2019; c 14.]
If those words mean anything, the Scottish Government should publish the legal advice that the committee is seeking.
On 1 October this year, the First Minister told members that all the information that the committee had asked for was being provided, except when there was a “legal reason” why it could not be. That statement is, I am afraid to say, simply untrue. There is no legal reason why the legal advice that we are seeking cannot be published. It is simply a matter of political choice by the First Minister and the Scottish Government. There is nothing in law preventing it from being provided.
Why does that matter? We know that the legal stance taken by the Scottish Government led to the loss of the judicial review case, and with it more than £500,000 of taxpayers’ money that was paid to Mr Salmond for his legal costs. If it is the case that the legal advice obtained by the Scottish Government, either in-house or externally, said that it had a good case to defend, lessons need to be learned about why such poor advice was offered to ensure that there is no repetition in future.
The alternative explanation is much more sinister and concerning. Mr Salmond’s allies believe that the legal advice obtained by the Scottish Government said that the judicial review case should not be defended as there was very little chance of success. If that is indeed what the legal advice said, a decision was taken at the top of the Scottish Government to defend the case regardless, and, in light of what we now know, that decision was irresponsible and reckless.
More worrying still is the accusation that the decision was made on political grounds, and that the Scottish Government was effectively pursuing a vendetta against the former First Minister, using public funds to do so. That claim might be nonsense, but it is impossible for members of the committee, or indeed the public as a whole, to reach a view on which of those explanations is correct in the absence of seeing the legal advice.
That is why the publication of the legal advice is vital to the inquiry, and it explains why all members of the committee, from all five political parties represented in the Parliament, have joined together in making calls for the legal advice to be published.
As matters stand, it is hard to avoid the conclusion that, to date, the Scottish Government has treated the inquiry with something close to contempt. In addition to the refusal to release vital information, we have now had an astonishing four occasions on which senior civil servants have come to the committee and given oral evidence and had to write to the committee subsequently to correct misleading statements that were given in a public session. That is simply not good enough.
It is essential to the work of the committee that the legal advice is made available to us. I hope that the Scottish Parliament will agree today to support my call for its publication. If we are successful in winning the vote later this afternoon, I expect the Scottish Government to respect that parliamentary vote and produce the missing documentation as a matter of urgency and, in so doing, to fulfil all the promises that have been made by the First Minister and the Deputy First Minister to be open and co-operative with the inquiry. To do otherwise would be unforgivable.
That the Parliament calls on the Scottish Government to publish all the legal advice it received regarding the judicial review into the investigation of the alleged behaviour of the former First Minister, Alex Salmond.
Scots law provides that any person who seeks legal advice has the benefit of confidential communications with their lawyer. That is an important and well-established legal principle. In the same way, legal professional privilege is part of the normal operation of the Scottish Government. It supports good government by allowing ministers and officials to be informed by appropriate and full legal input when making decisions. Legal privilege is inherent to the functioning of good government and the rule of law.
It is important that the legal advice that ministers and their officials receive is full and frank and not affected by concerns about it subsequently becoming public. The principle of legal privilege has been upheld and respected by successive Scottish and United Kingdom Governments of different political colours on a range of topics and on very high-profile issues including, recently, the Conservative-led United Kingdom Government in relation to issues in connection with Brexit. Governments operate on the principle that legal privilege applies, which allows for open and candid legal advice to be taken to inform the process of decision making.
Legal advice does not constitute a democratically taken decision—
If Mr Johnson will forgive me, I need to make progress. I have a lot of ground to cover.
It is advice that informs that decision. It is the decision itself that the Government is accountable for, and in the case at the centre of this debate—the handling of the judicial review—the Scottish Government’s decision making, or, in essence, its legal position in the case, is set out in the pleadings in the case, informed by the legal advice that we took. Those pleadings have already been shared with the committee, including various changes and developments that took place during the handling of the case, as set out in a detailed timeline document that has, again, been made available to the committee.
That is one aspect of the information that the Scottish Government has provided to the committee in making available the documentation that the committee has requested. Maintaining legal professional privilege has not prevented the Government from providing the committee with more than 1,000 pages of relevant material. Scottish Government witnesses have provided more than 14 hours of oral evidence to date. We are working to provide more material to the committee and have set out our intention to initiate legal proceedings seeking to allow the release of further documents that we believe the committee should receive.
The First Minister and I have both personally provided written evidence and the First Minister has made clear her willingness to attend the committee in person when asked. Our co-operation has also included the Lord Advocate making himself available to provide oral evidence to the committee on relevant matters. He has already attended committee on 8 September and will attend again next week.
The Lord Advocate gave detailed answers at committee on the issues at the heart of this debate. He explained:
“It is really important to say that the assertion of legal professional privilege is routine. Its waiver is exceptionally rare, and it happens against the background of very strong reasons of public policy”—
If Mr Mundell will allow me to finish the quote, I will give way to him.
The Lord Advocate said:
“Its waiver is exceptionally rare, and it happens against the background of very strong reasons of public policy for maintaining that confidentiality, which facilitates and encourages the seeking and receipt of legal advice by policy makers and ministers on a basis of absolute candour.”
He went on to say:
“In the context of a litigation, where inevitably the Government’s previous legal position may come under scrutiny and test, it is particularly important that the Government is not disincentivised from seeking and obtaining legal advice on the basis of absolute candour. It is also fair to say that, the more an issue is a matter of live political debate, the greater is the risk that a waiver of privilege would undermine that.”—[
Official Report, Committee on the Scottish Government Handling of Harassment Complaints,
8 September 2020; c 47.]
I give way to Mr Mundell.
If Mr Mundell looks at examples of where the Government has waived legal professional privilege, he will see that they have been major issues of public policy such as historic child abuse, contaminated blood or other issues of that nature. In this case, there is an issue of litigation. The point that the Lord Advocate made—
No—I am answering the member’s intervention.
The point that the Lord Advocate made in the quote that I read out is that it is particularly relevant in a situation in which matters are the subject of litigation for the principle of legal professional privilege to be applied.
I have to make further progress, I am afraid.
The Government is frequently involved in litigation and decision making as part of normal good government. As the Lord Advocate noted in his evidence, it is crucial that decisions can be taken with the benefit of full and frank legal advice.
If the Government were to waive its privilege in this case, I would be concerned that in any future high-profile litigation involving the Government, ministers might not be able to benefit from advice that is given on a full and frank basis should there be a fear that that advice might be published.
We all surely recognise the benefits for public policy and decision making if the Government can benefit from being able to take legal advice that is robust and which considers all possibilities and weighs up all considerations. None of us wants public policy and decision making to fall victim to legal advice that errs on the side of caution for fear of its publication.
The strength of legal privilege stems from a consistent application by a client—in this case, the Government—across its legal communications. Picking and choosing what to make public does not assist decision makers to make sound and reasonable decisions or assist Parliament and the public to hold the Government to account.
I have carefully considered the committee’s request that the Scottish Government waives legal privilege in this instance. I have concluded that the public interest in maintaining the privilege, including the negative impact of waiving privilege for all areas of Government intervention, outweighs any perceived areas of public interest in disclosing legally privileged material. The Scottish Government continues to assert legal professional privilege in relation to the work of the committee. That will not prevent us from continuing to co-operate with the committee’s work in the supply of documentation and the provision of witnesses. That has been the Government’s commitment throughout this process, and it will remain so for the remainder of the inquiry.
I move amendment S5M-23218.2, to leave out from “calls” to end and insert:
“acknowledges that legal professional privilege is an important established legal principle that gives both individuals and organisations the right to privacy in legal advice, that successive Scottish and UK governments of different political configurations have operated on the basis that legal professional privilege enables decisions to be informed by full and frank legal advice, and that, while maintaining its legal professional privilege, the Scottish Government has provided and is providing substantial documentation and other evidence to support the work of the Committee on the Scottish Government Handling of Harassment Complaints, including the Lord Advocate making himself available to provide oral evidence on relevant matters.”
I begin by quoting the words of the First Minister in the chamber on 17 January 2019, because it is worth reminding members of what she said. She stated:
“The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request ... My commitment is that the Government and I will co-operate fully with it”.—[
, 17 January 2019; c 14.]
Let us be clear: Nicola Sturgeon was speaking as the First Minister of the Scottish Government, not in a personal capacity, and there were no caveats to what she said. That means that the Government should be committed to openness and transparency, and it should be providing the committee with “whatever material they request”.
The Deputy First Minister is, however, reinterpreting what the First Minister said to mean something completely different. Contrary to what the Scottish Government says, the committee has had partial information; pages of white paper with no information on it at all because it has all been redacted; delayed information; and, in some cases, no information at all.
Information on complaint handling was supposed to be provided to the committee by the end of August. We are now in November and we are no clearer about when that information will be received. I would not object so much if the committee had been established yesterday or even last week, but it was established more than 18 months ago. It should, therefore, be no surprise to the Scottish Government that the committee would want that information.
The question of the judicial review is central to the committee’s remit—a remit that the Scottish National Party agreed with. Understanding the legal advice that was given to the Scottish Government is key to determining whether it pursued the judicial review appropriately or whether it wasted public money. Let us remember that £500,000 was given to Mr Salmond and his lawyers, which was on top of the cost of external counsel for the Scottish Government at £118,000, never mind the cost that we have discovered of a whole array of officials meeting daily in same cases—at least 10 to 12 of them lawyers—and another group meeting three times a week involving comms people, policy officials and special advisers. Then, of course, there were the 17 meetings with counsel. That is a huge investment of public money in just this one case.
There is, of course, precedent for providing the committee with legal advice that has been taken. Government legal advice was provided to the United Kingdom blood inquiry, the sexual abuse inquiry and the trams inquiry. Why is a parliamentary inquiry of less importance and status to the Scottish Government than a public inquiry or, indeed, a Government inquiry into trams?
We need to remember that this is about women who complained about experiencing harassment in the Scottish civil service. With all due respect, they are much more important than trams. They deserve the committee to do its job: to understand what went wrong and why they were failed. For those who come forward in the future, there needs to be trust in a process that is not subject to challenge. When the Scottish Government withholds important information from the committee, that lets down those women and other women in the future.
Despite repeated letters and requests, and despite the convener having put her foot down very publicly—I pay tribute to her for doing so—the Scottish Government continues to stick its fingers in its ears and refuses to provide the information. That is simply not good enough. I hope that, this evening, the Parliament votes for the release of the legal advice that was provided to the Scottish Government. If the Scottish Government ignores the will of the Parliament, we can only assume that it really does have something to hide.
6 February 2019, Parliament voted to establish a committee to inquire into the Scottish Government’s handling of harassment complaints in the light of allegations made against former First Minister Alex Salmond, which led to the judicial review that was conceded by the Scottish ministers at a cost of more than £500,000. The point of the inquiry is to establish what exactly happened and, as a result, to ensure that the procedures are fit for the future.
As we have heard, the committee has asked on a number of occasions for the legal advice that is referred to in the motion, but the Government has refused to hand it over. I acknowledge the Deputy First Minister’s point that ministers do not, as a rule, publish legal advice. Doing so, it is argued, would compromise the requirement for frank and independent advice. If the providers of such advice knew that it could be released at a later date, such frankness could be compromised to the detriment of good government. In recent years, the Government has refused to publish legal advice on the legality of a second independence referendum without a section 30 order, and it has refused, in response to requests from the Law Society of Scotland, to publish its legal advice in relation to the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.
However, legal advice can be published if the public interest requires it, as Murdo Fraser mentioned. Sections 21 and 28 of the Inquiries Act 2005 give powers to the chair of any public inquiry to require evidence and documents to be produced, including legal advice. Under the freedom of information regime, legally privileged information is a statutory exception, but the Scottish Information Commissioner can order disclosure when there is a compelling public interest for it. Given that there has been a freedom of information request for the information, the commissioner may yet do so. As was set out in the letter of 7 September from Mr Swinney to the committee, paragraph 2.40 of the Scottish ministerial code makes it clear that disclosure can be made
“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter”.
The Committee on the Scottish Government Handling of Harassment Complaints is not a public inquiry, but it is a special committee of Parliament, established by a resolution of Parliament to inquire into specific matters of public interest in relation to an apparent serious failing of Government. The idea that legal professional privilege always applies is wrong. A public inquiry can overrule it, it can be waived under FOI and, if ministers consider it appropriate, they can waive it under the Scottish ministerial code. The committee’s letter of 30 September 2020 to John Swinney, which references the Deputy First Minister’s 7 September letter to the committee, states that
“the committee notes that the Scottish ministers have, on previous occasions, chosen to waive legal privilege. It did not impose a restriction notice on the disclosure of legal advice to the Scottish child abuse inquiry or the (UK) infected blood inquiry as well as limited disclosure in the trams inquiry.”
I repeat that it is possible to waive legal professional privilege when the public interest demands it.
The only real question that the Scottish Government and Parliament face is whether it is in the public interest to disclose the legal advice. The Government has claimed that, in its view, it is not. However, the Parliament is invited today to, in effect, decide whether the release of that advice is in the public interest. I submit that this democratically elected Parliament is a better barometer of the public interest than the Government, which is an interested party in the inquiry.
Scottish Greens believe that the release of legal advice is in the public interest, since the whole point of the committee’s work is to consider the Government’s handling of complaints under the complaints procedure—the very substance of the judicial review and thus the reason why the legal advice plays a central role.
The Deputy First Minister said that “ministers make decisions”, but assessment and critical scrutiny of that decision making cannot be done in the absence of the advice that informs it. The committee has, unanimously, asked the Government for that advice, and MSPs from every party in the Parliament have agreed that the committee needs to see it.
The committee serves the Parliament, so this evening I will be particularly interested in how SNP backbenchers vote. Will they stand up for their parliamentary colleagues on the committee and join all other parties in supporting it in its endeavours, or will they defy their parliamentary colleagues and side with the Government—an interested party that refuses to release the advice?
I am grateful for the opportunity to speak in support of the Conservative motion. I will come to the substance of the legal advice in a moment. Before I do, I note that this is not the speech that I had originally intended to give. Had my amendment been selected last night, I would have set out why the Parliament should direct the Scottish Government to urgently expand the remit of the ministerial code investigation into the actions of the First Minister.
At this time, James Hamilton QC is charged with the investigation only of the meetings that were held between the First Minister and Mr Salmond that were connected to the complaints against him and the Government investigation of the same. However, significant and detailed evidence has been passed to our inquiry that casts doubt on the First Minister’s version of events. For legal reasons, the evidence cannot yet be published, but I know that I speak for colleagues when I say that, when we saw it, we recognised the immediate need for the ministerial code referral to be expanded to examine whether Nicola Sturgeon knowingly misled the Parliament under the terms of section 1C. Despite what the First Minister told Oliver Mundell this past week, this is a quasi-judicial process and the only body that can expand its remit is the Government itself, so I ask it to do that today.
The Liberal Democrats will support the motion. As a member of the inquiry, I have been frustrated by the grey wall of silence that we have encountered from the civil service in respect of nearly every aspect of our inquiry, and many answers will flow from the legal advice. The Government has clung so hard to legal professional privilege during our deliberations that the inescapable conclusion of any dispassionate observer must be that there is some reason why it does not want us to see the advice.
The judicial review was launched to settle the legality of the complaint-handling process, but it was not the only means of doing so. Mr Salmond offered arbitration several times, to adjudicate not the complaints but how the Government had handled them. There was obviously a clear advantage for the former First Minister in the privacy of arbitration—but so, too, for the complainers, and, for me, that is what the issue is all about. I credit Jackie Baillie for an excellent speech about why we should always remember the complainers who are at the heart of the investigation.
Judicial review is a winner-takes-all event, and one of the consequences of the judicial review is that the original complaints will probably never see the light of day again or receive a fair hearing under any process that is used by the Scottish Government. With arbitration, the complainers would have had a fighting chance of starting again and having their complaints heard properly from the beginning, without the public intrigue that the judicial review brought with it. Without the legal advice, we will never understand why the Government took the decision that it did.
The First Minister’s evidence suggests that the Government had been aware of the risk of judicial review since the spring of 2018. As we heard from Murdo Fraser, Mr Salmond had received advice from senior counsel suggesting that his case was very strong—a slam dunk. Therefore, it is hard to imagine that the Government did not also seek legal advice from the outset.
Our committee is charged with understanding with whom the responsibility for the failure ultimately rests. If, at some point, the Government was offered the opinion of senior counsel that the probability of victory was vanishingly small, why on earth did it proceed? It would have been much easier just to set fire to £500,000 on the front step of St Andrew’s house and leave the women at the heart of the matter utterly exposed. The Parliament needs answers, and those answers lie, in part, in the publication of the Government’s legal advice.
On 8 January 2019, Lord Pentland announced that the Scottish Government had conceded the former First Minister Alex Salmond’s petition for judicial review on the grounds that the procedure was unlawful, the decision was taken in “procedurally unfair” circumstances and was “tainted by apparent bias”. The former First Minister was awarded an interim payment of £350,000, and a balance of £166,250 to cover his legal expenses, which were paid on the solicitor client scale, reflecting that the Scottish Government had conducted the litigation incompetently or unreasonably.
On 15 January 2019, Parliament agreed to establish a committee of inquiry to look into the Scottish Government’s handling of complaints against the former First Minister. The Alex Salmond harassment charges case followed, which was sub judice. Nonetheless, throughout 2019 and up to June 2020, the committee met in private and was determined to do all possible groundwork to enable it to hit the ground running when, on conclusion of the trial, it was able to meet in public and begin the formal evidence sessions. It did so for the first time in August 2020.
However, when seeking the relevant information to allow it to carry out its remit, the committee and its members have experienced huge frustration, as deadlines for productions are missed or information, such as that which was released in the Scottish Government’s first tranche, is supplied in a format that makes it virtually unintelligible. Quite simply, behind the scenes it has felt like wading through treacle to get straight answers to questions, or to receive information to allow proper scrutiny during evidence sessions. Instead, if evidence is produced at all, relevant deadlines are ignored, and the necessary information is frequently received the night before taking evidence.
Based on that, it is perhaps not surprising that we are having to resort to a parliamentary debate to call on the Scottish Government to waive legal privilege and release the advice that it received, which it has not done despite there being precedent for its doing so.
The evidence that is in the public domain confirms that arbitration was offered to, and rejected by, the Scottish Government well before the petition for judicial review was formally lodged in August 2018. Significantly, the unsuccessful challenge to the judicial review then cost the taxpayer a minimum of a staggering £630,000.
Information that has been received regarding the suggestion of arbitration confirms that the Scottish Government rejected arbitration because it was confident of the legality of the process. The former First Minister’s senior counsel, however, believed that the process was unlawful. The legality issue therefore had to be resolved either in private, in a confidential and binding arbitration, or in public in the Court of Session.
The position was that if the former First Minister’s legal advice was wrong, the process for judicial review would proceed; but if the Scottish Government’s legal advice was wrong, it would discover that that was the case without the expense of losing in a public court. Crucially, arbitration would have guaranteed confidentiality for the complainers, but they were never offered that choice.
In order for the inquiry committee to carry out its remit effectively, the Scottish Government must waive legal privilege and release the judicial review advice that it received. Only then can the required transparency and accountability be achieved for the complainers and the taxpaying public, who paid the six-figure costs of the judicial review.
I whole-heartedly support the motion in Murdo Fraser’s name.
The motion asks Parliament to call
“on the Scottish Government to publish all the legal advice it received regarding” a judicial review. In my speech I will, inevitably, cover some of the same ground as the cabinet secretary, because his argument exposed the deep flaws that are at the heart of the Conservatives’ position.
The Conservatives lodged the motion despite the fact that they are more than aware that in the United Kingdom it is the law officers who are responsible for providing legal advice to the Government. Moreover, successive Governments of all political persuasions have observed the long-standing convention that the advice that they receive from the law officers is not disclosed outside the Government; indeed, Murdo Fraser himself made that point in his opening speech. The convention is one that the Conservative Government at Westminster adheres strictly to, with the clear rationale for the convention being well understood—that it enables the Government to have access to full and frank legal advice.
That position is well laid out in the “Scottish Ministerial Code: 2018 edition”, which states:
“Ministers may acknowledge publicly that they have received legal advice on a particular topic, but must not divulge either who provided the advice or its contents (whether it is from the Law Officers or from anyone else). This applies to all forms of legal advice”.
The code goes on to say that the
“approach is required in order to take account of the public interest in maintaining ... The right to confidentiality of communications between legal advisers and their clients”.
Of course, it is true that exceptions have been made in regard to publicising such advice in truly exceptional circumstances, such as the UK going to war in Iraq, or in major public policy areas, as has been pointed out by the Deputy First Minster. However, I submit that the case that is being put forward by the Conservatives does not meet the bar of exceptional circumstances or major public policy. I think that the Conservatives and, indeed, the whole Parliament know that to be the truth.
In lodging the motion for debate today, the Conservatives also knew full well what the Scottish Government’s position would be, because that position is well established.
Given those circumstances, the question has to be asked: what are the purpose of and motive behind the Conservative motion? Given the background, the only possible conclusion that can be reached is that its purpose is an ill-conceived attempt to precondition the outcome of the committee inquiry into the Scottish Government’s handling of the harassment complaints, and that the motive is an attempt to politicise the process and undermine the credibility and position of the Scottish Government, no matter how futile that attempt might be.
To exacerbate matters, the motion has been lodged during a coronavirus emergency that has now killed more than 47,000 people in the UK and, sadly, claimed the lives of almost 400 people yesterday, with 50 of them in Scotland alone in the past 24 hours. However, there is an important Conservative motion for debate today, in the name of Donald Cameron, in relation to Covid-19 deaths in care homes. I say to the Conservatives in all seriousness that had they devoted all their time to a motion that was concerned with the Covid-19 emergency, people in Scotland might have taken their concerns more seriously.
However, the truth has been bared for all to see: the Conservatives would rather indulge in political stunts than properly address the real and deep concerns of the people Scotland about the Covid-19 emergency.
This is an important debate because, undoubtedly, the circumstances surrounding it are some of the most troubling issues that we have dealt with since devolution and the creation of the Parliament.
As Jackie Baillie and Alex Cole-Hamilton set out, the complaints that are at the centre of the issue are of the most serious nature. As Murdo Fraser pointed out, serious questions have been asked publicly about how the Government arrived at its decisions, and about whether it was pursuing a particular agenda. As Andy Wightman pointed out, there are key questions about how the Government used the advice that was made available to it. Of course, there is also the question of the more than half a million pounds that the circumstances and decisions have cost the public purse.
It is with regret that I take exception to Bruce Crawford’s comments. He asked whether the test of exceptional circumstances had been met. I simply put it to him like this: if a former First Minister making accusations such as have been made of the existing First Minister does not constitute exceptional circumstances, I simply do not know what would.
This is a matter of collective concern, because the issue and the circumstances surrounding the Government’s decisions reflect not just on the Government, but on the Parliament, and on politics in Scotland as a whole. Ultimately, power is not vested in the Government; it is vested in Parliament, and we exercise that power on behalf of the Scottish people. It is through that sequence only that the Government exercises its power on our behalf and, ultimately, in the public interest. That is critical, and that is what is at question. Andy Wightman set out that point well.
We need to understand the appropriateness of the Government’s actions. The only way that we can do that is by seeing the legal advice, because there are critical questions to ask of the Government. Why did it continue to defend the judicial review? Did political judgment override legal assessment? If that occurred, the Government failed to act in the public interest. The only way that we can make that determination—the only way that we can judge whether political judgment overrode the advice that the Government received—is by seeing the legal advice. It is so important that we see it.
There is the critical matter of legal privilege. I understand the arguments that the Deputy First Minister made. Legal privilege is hugely important, if we believe in the rule of law and in individual rights. It is important that individuals are able to act in an informed way, so that they understand their options and can investigate them without prejudice. Indeed, organisations have the same private interest and enjoy the same legal privilege. In that regard, the Government does, indeed, have legal privilege. However, is that exclusively a private interest? The Government is different from an organisation or an individual because it acts on our behalf and in our interests.
It is absolutely right that the Government must be able to deliberate, decide and make judgments, but that assumes that it acts in good faith and using its best judgment. That has been called into question. Was such judgment exercised, or were other elements taken into consideration? On top of that, there are other issues, such as the policy being retrospective rather than prospective. The situation is very much akin to what happened with the release of legal advice in the trams inquiry and the blood inquiry.
Overall, the public interest has itself been challenged. A key question is whether the machinery of Government been used for political agendas and personal interests rather than those of the public. The only way that we can answer that is by seeing the legal advice. I urge the Government not to wait until this evening’s vote to act. It should release and publish the legal advice. It is morally required to do so, and it should not require a vote in Parliament to force it to do so.
In this short debate of one hour and 10 minutes—the Tories have opted to use only half of their Opposition time for it—I wish to focus on the issue of legal professional privilege.
At this point, perhaps it would be prudent for me to refer members to my entry in the register of members’ interests, from which they will note that I am a member of the Law Society of Scotland and hold a practising certificate, albeit that I do not currently practise.
At its heart, the motion concerns legal professional privilege so, as I have said, I will focus on that. It is a concept that is centuries old and is deemed essential to the operation of the legal system and the administration of justice. The principle also underpins the convention that legal advice that is provided to Governments is not published, so as to ensure that their decisions are informed by comprehensive and open legal advice that can be provided without fear or favour. The obverse of that would involve the risk that such advice could be skewed if publication were to be the norm. Therefore, the convention of not publishing legal advice has long been followed by Governments across these islands and in many other countries.
Of course, there have been a few exceptions to that. We have already heard about that happening in Scotland—in the main, in relation to judge-led inquiries. In recent times, there have also been two notable exceptions relating to the UK Government’s approach. The first concerned Tony Blair’s Labour Government’s publication in 2005 of the advice that it had received on the Iraq war; and the second was Theresa May’s Tory Government’s publication in 2018 of the advice that it had received on Brexit. Those exceptions involved what must be regarded as seismic foreign policy decisions: Labour’s Iraq war decision represented a monumental foreign policy disaster, and the Tories’ Brexit shambles an acute case of economic self-harm. Given the seismic nature of those issues, I contend that publication of legal advice in those particular circumstances should set no precedent, as the exceptional approach that was taken should be understood very much in context.
Incidentally, it is perhaps worth pointing out that, notwithstanding—[
.]—I have only four minutes, so I will not take an intervention. Notwithstanding the truly exceptional circumstances justifying the publication of the advice on Brexit, they were nonetheless not sufficient to garner the support of Scottish Tory MPs, and David Mundell, Douglas Ross and others resisted publication at that time. Further, I do not recall any Tory member of the Scottish Parliament raising an eyebrow about that in this chamber then or calling for publication of that legal advice.
As far as the ministerial code and the public interest test here in Scotland are concerned, and taking into account the operation of the convention, I submit that it is by no means clear that, thus far in the debate, a compelling case has been made for waiving professional legal privilege.
As we have heard, an inquiry is concurrently being held by a committee of the Scottish Parliament, to which I understand that the Lord Advocate has already given oral evidence and to which he could be recalled if that were felt to be necessary and appropriate.
In 21st century Scotland, there might indeed be merit in proceeding with a jurisprudential debate on the reach of the principle of legal professional privilege—in particular, as far as it concerns the role that it plays in the giving of legal advice to Governments. However, it is surely important that such a debate should be conducted in a measured, objective and coherent fashion, and not simply fitted around an individual case—especially in a 70-minute parliamentary debate. In fact, the better forum could be the Scottish Law Commission, which brings great weight to the legal issues on which it deliberates.
For the foregoing reasons, I will not support the motion.
I very much welcome the opportunity to speak in this important debate. It is right that responding to the Covid-19 pandemic has been at the forefront of our minds and has dominated proceedings in the chamber. Now that we are in the midst of a destructive second wave and heading into the winter months, that will become even more crucial as we look to protect our national health service and to save lives.
Having said that, I am afraid that this debate can wait no longer. It is right that the Scottish Conservative and Unionist Party is leading on this today. Not only has this extraordinary affair made a mockery of the Parliament and shamed the SNP, it has been a slap in the face of the people of Scotland.
Along with the discredited hate crime bill, the conduct of the Scottish Government throughout this affair is rapidly forming part of a larger pattern, in which it thinks that it can simply cast aside the concerns of members in the chamber and do what it likes. We will not stand by and let that happen.
With the legal battle having cost the taxpayer over £0.5 million—an eye-watering amount and a complete waste of public funds considering the severe economic harm of the coronavirus pandemic—the people of Scotland deserve answers as to why that money was spent in the first place. My party and members across the chamber are therefore determined to get to the bottom of this fiasco and force the SNP to come clean.
With its contemptuous attitude towards the special committee, the SNP continues to withhold essential information from the Parliament in the form of legal advice relating to the Alex Salmond inquiry. It is vital that that advice is released immediately. The SNP claims that it cannot publish legal advice, but that is hypocritical to say the least. From air strikes in Syria to the European Union withdrawal agreement, the SNP has urged the UK Government to publish legal advice on a range of issues in the past. The legal advice with regard to Mr Salmond’s judicial review is crucial evidence. What is it that the SNP has to fear? It is information that could allow us, as parliamentarians, to properly scrutinise and establish exactly what went wrong in this whole doomed affair.
Like many others, I am sick and tired of this Government treating the Parliament and the Scottish people with contempt. The SNP’s attitude is simply staggering and stinks of sheer arrogance. In many people’s eyes, it has lost all credibility as a result of this affair. That is why I have repeatedly urged the chamber and MSPs of all political persuasions to stand up and speak with one voice to call on the SNP to immediately release the key documents.
So far, the extent of cross-party support that has been generated from members across the chamber has been extremely welcome and refreshing to see. That kind of unity from members further signals that the Government is clearly in the wrong. Our ability to act with purpose and to collectively endeavour to get answers for Scotland will be crucial in the next few months as the committee continues with its inquiry. Simply put, in the face of SNP contempt, the reputation of the Parliament is on the line. It is high time that we stand up and be counted.
For me, today has been a tale of two Parliaments. The first, this morning, was a meeting of the COVID-19 Committee, on which I serve, in which we scrutinised the First Minister in detail on the new tier system and on her handling of the pandemic more generally—serious matters indeed. However, I cannot help but contrast that with this afternoon’s Conservative business. This debate, about which I feel more sorrow than anger, could not be more different from this morning; it feels like political game playing at its worst.
Bruce Crawford, in his speech, exposed the purpose and motive behind the motion today, which I think stand for themselves. Do not get me wrong—the Committee on the Scottish Government Handling of Harassment Complaints is looking at some serious matters, which absolutely require full investigation, but therein lies the point. We are in the middle of the committee inquiry, so how can it be right for the Tories to bring forward such an ill-timed motion, which cuts right across the work of that committee?
The committee that has been tasked with investigating this matter should be given the time and space to scrutinise what went wrong and why. Furthermore, the Tory motion focuses specifically on the issue of the legal advice, which is interesting; I want to make three key points about that.
First, the protection of legal professional privilege has been relied on by Scottish and UK Governments of all political colours, and must be respected. Secondly, the continued existence of legal professional privilege for the Scottish Government helps to ensure the rule of law and administration of justice. Thirdly, the Scottish ministerial code recognises the existence of legal privilege and is clear that ministers can say that legal advice has been obtained but must not divulge it. The exceptions that have been made previously were made on issues of public policy, which is not the case here.
The code also notes the public interest in ensuring that the Scottish Government can have confidential communications with its lawyers. The Lord Advocate’s submission to the committee expanded on that by explaining that good government is ensured by enabling ministers and officials to seek legal advice whenever they need to.
It is worth noting that the Scottish law officers must be consulted and must consent before any legal professional privilege can be waived, and that the code confirms that the law officers would have to be convinced that there were “compelling reasons” in support of a waiver. Some members, in supporting the motion, appear to be saying that the Scottish Government should release the legal advice even if the law officers have said that that should not happen or have not agreed. I believe that that would be a breach of the ministerial code. It is worth noting that the Lord Advocate has made himself available to provide oral advice on those relevant matters.
The correct parliamentary process is the committee investigation, which should be allowed to run its course free from the distractions of parliamentary debates such as this. Therefore, I urge members to vote against the motion and to support the amendment in the name of John Swinney.
The debate has been short but illuminating. The Opposition parties across the chamber are of one mind: they believe that the Scottish Government should provide the committee with its legal advice in relation to the judicial review of the harassment policy. SNP members on the committee agree, too. The remit for the committee was agreed by the Parliament as a whole. This is about the credibility of the Parliament and the accountability of the Scottish Government.
The committee has a job to do and, to be blunt, the Scottish Government is obstructing its work. Whether it is withholding information or the sometimes apparently serial memory loss on the part of senior civil servants, it amounts to the same thing: a lack of co-operation with the committee. Some people, although I am not one of them, might say that it is a deliberate lack of co-operation.
The First Minister’s commitment was made on behalf of the Scottish Government, which she leads. I appreciate that she has recused herself, as she will be a witness to the committee, but that is not an excuse for the Scottish Government not to fulfil that promise. The Deputy First Minister can release the legal advice if he chooses to do so. Andy Wightman, in an excellent speech, explained exactly why that is the case. The issue is not that the Scottish Government cannot tell us; it is that the Scottish Government will not tell us.
I will give one example of the obstruction that we have faced. Early letters from the Deputy First Minister about the judicial review said that the Scottish Government could not share any information, as it was a matter for the Court of Session. That was simply not true. The Government could have shared with the committee the information that it had presented to the court. However, it took the attendance of the Lord Advocate, giving evidence under oath, and a letter from the committee to the Court of Session to establish that that was the case.
We have heard that an army of lawyers was involved for the Scottish Government—at least 10 to 12 of them—so I am not persuaded that the Deputy First Minister did not understand that he could share that information. If it was not ignorance that prevented the information from being shared, what on earth was it? Why did it take the presence of the Lord Advocate at the committee, under oath, to stop the nonsense coming from the Scottish Government?
I will not rehearse the evidence that the committee has received. Suffice it to say that I have genuine concerns about the blurring between the party and the state, but that is for another day. The committee has been told that the legal advice was taken throughout the judicial review process. An FOI request from September 2019 revealed that there were 17 meetings with counsel between 23 August and 7 January. The counsel remained the same throughout, so there would have been consistency in their thinking and their advice.
Just yesterday, the Scottish Government’s lawyer in charge agreed that even when the prospects of success were not good, the Government might still decide to proceed. That might be questionable, but we need to have the legal advice to understand that. When the prospects of success nosedived after the role of the investigating officer was revealed, why did it take the Scottish Government almost three months to concede the case? Having the legal advice provided will help to address those fundamental points in relation to the judicial review.
Of course, the Scottish Government has form. We are used to not getting information through FOI requests—we are used to that being withheld. Now the Government is withholding information from the committee; it even tried to withhold information from the Court of Session until it was forced to produce it. It is very much a case of secret Scotland with this Government.
It is time for the Scottish Government to end the secrecy and give the committee the legal advice or tell the people of Scotland what it has to hide.
Jackie Baillie said that she would not rehearse the business of the committee and the substance of the inquiry. Some members have raised elements of the substance of the inquiry, and I want to make it clear to the Parliament at the outset of my closing remarks that I will not reflect on any of the issues of substance that the inquiry is concerned with. It would be inappropriate for me to do so, as there is a committee process under way, and that is properly the business of the committee.
I want to address the issue of the nature of the documentation that the Government is providing to the committee, which Jackie Baillie and Margaret Mitchell touched on, because I do not think that either of their characterisations was in any way fair, appropriate or representative of the issues that the Government must be mindful of in the way in which we present information to the committee.
Understandably and quite appropriately, the committee itself has established stringent rules about how information must be presented, to ensure that it complies with the various legal obligations and requirements that are on the committee and on the Government, and which have been applied in many circumstances by decisions of a number of courts. For that reason, I think that it is unfair to criticise the redaction of documents by the Government when the Government is simply acting to ensure that we do not breach the law in relation to the content of that material. I think that the Parliament should accept that the Government is going to significant lengths to ensure that we comply with the series of legal requirements under which we are operating.
Does Mr Swinney not recognise that the argument that he is making makes it even more compelling that the judicial review legal advice, which can be published, is published, so that the maximum information is in the public domain?
I am coming on to that point, which is about the material that the committee already has. The Government has already provided the committee with the pleadings that have been the substance of the legal argument that the Government has put to the courts in relation to the judicial review. The various changes to those pleadings have been set out to the committee openly and transparently, in compliance with all the other obligations that are placed on the Government.
In addition, the Government has provided the committee with a substantial explanation of various events in the process of the judicial review to ensure that the committee is able to understand what influenced the decisions that the Government made as the judicial review took its course.
I will try another way of approaching the issue. I understand that Mr Swinney is not going to release the legal advice, but given the decisions that the Government took, which he has referred to, did the Lord Advocate or senior counsel at any point threaten to resign because of the decisions that the Government was taking in respect of that legal advice?
I remind Alex Cole-Hamilton what I said at the outset: I will not get into the substance of any aspect of the processes in question, because it is not appropriate for me to do so.
The Government has shared the explanation of the case that we set out to the court and the explanation, in the form of the timeline, that goes with it.
I hope that Mr Wightman will forgive me, but I want to address a point that Daniel Johnson raised in his speech.
In essence, Daniel Johnson made my argument for me, because, in his speech, he accepted that legal privilege is vital in the rule of law.
He also accepted a central point in my argument, which is that, in all circumstances but particularly in litigation, Government must be free to explore all options without prejudice in relation to the handling of any particular case.
Mr Johnson went on to say that the Government carried additional responsibilities because it had to act in the public interest, which is absolutely correct. There are a multiplicity of circumstances in which the Government acts in the public interest in a litigation environment when those who advise us must be able to give us full and frank advice without fear of it being published, because, from the Government’s and the public interest points of view, the advice might end up being more cautious than it needs to be.
I give way to Daniel Johnson.
Does the cabinet secretary acknowledge that I also said that the issue of public interest was called into question, so the question whether the Government was acting in the public interest needs to be answered and the only way to do that would be to see the legal advice? Does the cabinet secretary understand that point?
Forgive me, Presiding Officer—I thought that I had six minutes to speak, so I apologise for extending my speech.
The answer to Daniel Johnson’s question is in what I just said to the Parliament about the combination of the explanation, the publication of the pleadings and the detailed timeline that provides an account of the Government’s decision making in the circumstances.
For those reasons, I invite the Parliament to support the amendment in my name and to reject the Conservative motion.
It gives me no pleasure to close the debate. I give credit where credit is due, as SNP back benchers were right about one thing: the debate should not be taking place, as it should not have been needed. If the Scottish Government had kept its word, Opposition parties would not have been forced to waste precious debating time to try to get something that had been promised in the first place.
Only a Government that has dug itself so deep into a hole would adopt a strategy of denying reality. The truth is that, no matter how many times the once honest John Swinney hides behind the paper-thin excuse of Government conventions on the publication of legal advice, this is not a conventional situation.
For an SNP Government that calls for legal advice to be published every time that there is a decision that it does not like to try to hide behind that defence is just the latest in a long line of comments and actions that are not credible. It does not wash with the public and it demeans Scotland’s national Parliament.
Given the allegations that have been made and the concerns that continue to surround the matter, the idea that the Scottish Government and the First Minister have the right to decide what is or is not in the public interest is laughable. As Andy Wightman rightly pointed out, this is a matter of self-interest. I wonder whether the cabinet secretary saw the legal advice before the decision was taken not to publish it. If he did see it, how can he objectively say to Parliament that there is no public interest in publishing it?
On top of that, the number of omissions and mistakes mean that the Government lacks credibility. Parliament has been misled.
Will Mr Mundell reflect on the comment that he has just made about the way in which information has been supplied to the committee? Does he not acknowledge the point that I made, which is that there are significant legal constraints that the Government must follow when supplying information to the committee, otherwise it would be in contempt of court?
I do not deny reality, unlike the Government, but I think that the Government’s attitude has been wrong throughout. I will not repeat the language that I have used in the past to describe the First Minister’s words and actions, because I want to be able to join colleagues in voting tonight to demonstrate clearly that the Government is out of step with Parliament, but dodging key questions just adds to the stench that hangs over this whole sorry affair.
It is convenient and easy to argue that the inquiry and the issue are somehow rendered unimportant in the context of current events. I appreciate that some people might sincerely believe that to be the case, but we cannot allow such allegations surrounding a serious abuse of state power and questions over the integrity of Government processes and procedures to be left unanswered.
For me, this is more about politics—[
.] This is about more than just politics—[
.] It is actually quite hard to speak when I am being heckled, Presiding Officer. This is about more than just politics and individuals. I have a great deal of respect for those, such as Alex Neil, who have been willing to speak out. I strongly suspect that many members across the political divide know in their hearts that something has gone very badly wrong in this case and that, at the very least, we are not being told the full story. I suspect that, like me, many members would now agree with Alex Neil that a judge-led inquiry might have been more successful than MSPs have been in extracting the required information.
I say that because it is now clear that the commitments of the First Minister and her Government to transparency and full disclosure are worse than meaningless and that those promises were only offered to buy more time. After all, if someone was serious about transparency, serious about helping Parliament get to the bottom of the issue, serious about restoring faith in the Scottish Government and serious about respecting the high office that they hold, they would maybe—just maybe—be a little bit more proactive when it came to disclosing the full facts and key documents.
I suspect that even John Swinney knows the reason why the Scottish Government has not adopted that approach, which is that it has something to hide. If that assertion is wrong, it is easy for the Scottish Government to disprove it. After all, sunlight is the best disinfectant. Let us get the full facts into the public domain and let members of this Parliament and the people of Scotland judge for themselves the actions and decisions that have been taken. I suspect that the full disclosure of information might even assist the First Minister with her memory. It would certainly let us move on more quickly and allow the valuable resources of this Parliament, which have been highlighted by so many SNP members this afternoon, to be refocused.
In my short four and a half years in this Parliament, I have lost count of how many times Nicola Sturgeon has said that leadership is about doing the right thing when it is difficult. When I look at this decision, I struggle and find it almost impossible to think that hiding behind legal convention shows any kind of leadership. If the SNP Government and the First Minister want to make a start on restoring trust in the inquiry process, they must listen to the will of Parliament if it votes at decision time to demand the publication of the legal advice. To do otherwise would confirm many people’s worst fears about their motives.
The Presiding Officer:
That concludes our debate on the Scottish Government’s handling of harassment complaints. There will be a short pause before we move on to the next item of business. I urge members who need to leave the chamber to be careful in observing social distancing.