Motion of No Confidence

– in the Scottish Parliament on 10th March 2021.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

Our next item of business is a debate on motion S5M-24260, in the name of Miles Briggs, on a motion of no confidence.

Photo of Ruth Davidson Ruth Davidson Conservative

Three years ago, two women came forward with allegations of sexual harassment against the former First Minister of Scotland. They were women who worked beside him and who, like anyone believing themselves harassed or abused by a senior colleague, felt the power imbalance keenly. Although these things can be about sex, they are always about power. They did not report it at the time; the former First Minster was arguably the most powerful man in the country and, as the current First Minister said in her evidence to the committee,

“a tough guy to work for”.—[

Official Report


Committee on the Scottish Government Handling of Harassment Complaints,

3 March 2021; c 23.]

After the fact, those women did come forward and we know now that a hastily written human resources policy on bullying and harassment, and its application, let them down. The policy was unfair, unlawful and tainted by apparent bias. It cost the taxpayer hundreds of thousands of pounds and the women untold injury—so much so that three years later it has never again been tested, despite the FDA union telling the committee that 50 per cent of staff told their workplace survey that they had experienced harassment by a colleague. It is a policy that has not been changed, revised or amended, and to have a harassment policy that workers are too afraid to use is a tragedy.

The one thing that could strengthen protection is to have an open and honest conversation about what went wrong, why it went wrong and how it can be made better. That is what the committee inquiry was set up to do—to have the Parliament already charged with oversight of the Executive review a systems failure so that we could fix the system and offer the thousands of people who work for the Government proper protection in future. The fact that the committee has been hampered at every turn from receiving even basic information in order to do its job does not just let down those women all over again; it lets down current and future Government employees, too.

That is the context of today’s vote of no confidence. Let us review the past few months. On 4 November 2020, the chamber voted for the following motion:

“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.”

On its passage, John Swinney did nothing and missed the deadline that was set by the Salmond inquiry committee of 13 November to hand over the information. On 25 November, another motion was passed by the chamber noting the previous vote and calling on the Scottish Government to respect the will of the Parliament, but John Swinney still did nothing. It took more than three months and the threat of a vote of no confidence in Mr Swinney that had the votes to win for his position to suddenly change and a promise of publication to emerge. The Deputy First Minister said:

“we will release the key legal advice.”

The first batch of that advice provided incontrovertible evidence of incompetence on the part of the Scottish Government. It included an urgent note from senior counsel saying that the judicial review had

“a very real problem indeed”.

The issue that had alarmed counsel so greatly was that they had just learned that the investigating officer had had prior contact with the complainers. That revelation was so serious that counsel advised as an option that

“the issue is disclosed and the Petition then conceded as a result”.

It collapsed its own case.

That raised the question of why counsel were not told about that information from the start. The investigating officer said during her evidence before the Salmond inquiry that she was “upfront” about the contact at the time. Who neglected to tell counsel that vital piece of information at the beginning of the judicial review process? Perhaps the minutes of the consultation from 11 September, near the start of the judicial review, would provide some answers, but we do not know, because John Swinney will not release any details of the meeting.

Despite those damning revelations, the evidence that was released on 2 March—the only legal advice that we got to see before the First Minister’s appearance at committee—was incomplete. John Swinney would go on to release 11 further documents in relation to the judicial review after the First Minister’s appearance—11 documents about which the First Minister could not be questioned under oath.

One piece of evidence—the email chain from 6 and 7 December—refers to the First Minister questioning counsel advice to concede the judicial review. If the Scottish Government had taken that advice on 6 December and conceded, it would have saved the taxpayer hundreds of thousands of pounds in legal costs. John Swinney withheld the information about the First Minister until after her appearance at the committee. [


.] Despite tranches of documents having been dragged from John Swinney, for fear of his job, key omissions still remain. Mr Swinney will have lots of time to address those points, and I will let him do so when I sit down. He will not take my time.

On 25 October, 2 November and 13 November 2018, the First Minister was represented either in person or by a member of her staff at consultations with counsel regarding the judicial review. In Friday’s letter to the Salmond inquiry committee, Mr Swinney does not mention the 25 October meeting at all, and claims that no minutes exist of the 2 November and 13 November consultations, the latter of which the First Minister herself attended. It is inconceivable that minutes were not taken at a meeting between the permanent secretary, the First Minister and the First Minister’s chief of staff and senior external counsel. What about the other consultations on 11 September 2018, 23 October 2018 or 3 January 2019? No minutes or advice from those consultations have been published either.

The omissions in the public evidence make it clear that key legal advice that the Deputy First Minister promised has not been provided. In a note from counsel on 17 December 2018, they mention a consultation that took place on 10 November. Not only have we not been provided with any notes from that consultation; it does not even appear in the Scottish Government’s timeline of the judicial review. Who provided that timeline? It was John Swinney, in a letter of 26 October 2020 to the Salmond inquiry committee. No wonder the committee has written again to the Deputy First Minister to say that it is “extremely frustrated” and

“not reassured it has received all relevant information”.

We back the committee.

We know that we will not win today’s vote of no confidence—the votes are there for the Deputy First Minister. However, we believe that it is important and right to put on record that this is no way for the Scottish Government to treat this Parliament.

While John Swinney’s outriders will, I am sure, do a lap of honour in the press, the real losers are Scottish Government employees, who have been lumbered with a protection at work policy that everybody knows is damaged goods and that staff are too afraid to use. With a bit of transparency and candour, the committee could have helped to work out what went wrong and why, but John Swinney preferred to keep evidence secret at every turn. In a particularly damning note from 17 December, counsel told the Lord Advocate that they

“could not ... advise the Court that the Scottish Government had discharged its duty of candour.”

Given the way in which the release of legal advice has been handled, we believe that John Swinney and the Scottish Government have failed in that duty once again.

I move,

That the Parliament has no confidence in the Deputy First Minister, in light of the Scottish Government’s continued failure to publish legal advice called for in two resolutions of the Parliament on 4 and 25 November 2020.

Photo of John Swinney John Swinney Scottish National Party

On occasions on which motions of confidence are debated, other ministers tend to speak on behalf of the minister in question. Today, I have chosen to speak on my own behalf. The decisions that are under scrutiny in the debate are mine, and it is right that I am accountable to the Parliament for them.

On 4 and 25 November last year, the Parliament debated motions that called on the Government to release its legal advice. On both occasions, I set out why Scottish ministers were asserting legal privilege. It is an important tenet of Scots law that protects organisations and individuals alike, and allows them the benefit of frank, confidential advice from lawyers. That is why it is a principle that has been upheld by successive Scottish and United Kingdom Governments of different political parties.

Ministers’ view—my view—was that we could give the committee the information that it needed to understand what happened in the judicial review, while avoiding the damaging precedent for future Governments of waiving privilege. That is why, in December, I took the unprecedented decision to share with the committee, in confidence—and this is where Ruth Davidson is entirely incorrect in what she said—a detailed submission that explained the content of legal advice during the judicial review. I believed then that such an approach could fulfil our obligation to the Parliament and the committee without waiving legal privilege, thereby protecting the interests of future Governments. Since then, we have seen outlandish allegations of conspiracy and corruption promoted by people who, frankly, should and do know better. Those tactics require a response.

We concluded that the debate that those tactics provoked on the Parliament’s ability to scrutinise the Government, and the accusations on which the debate was founded, could impact negatively on public confidence in the Parliament, Government and our judicial institutions. Therefore, last week, I decided that the balance of public interest had shifted and that we should publish the advice from counsel. That meant that the process of release moved on to its second stage—consideration by the law officers for the first time. They consented to the release.

We have moved as quickly as possible through the legal checks, having regard to the statutory obligations involved, before releasing those documents. Members will recognise the importance of those processes, not least to protect the identity of complainers. In releasing information, I kept in mind that the committee motion explicitly sought two things: the legal advice of our external counsel

“and associated minutes of meetings relating to the Judicial Review.”

The Government has now published all the formal written advice notes that it has received from external counsel. We have published emails from our senior counsel and an unredacted version of the summary that was shared with the committee in December. We have also published documentation that includes the legal advice of the law officers. We simply do not have the minutes of meetings. We have asked senior counsel whether they have a minute of those meetings, but they do not.

Photo of John Swinney John Swinney Scottish National Party

No, because I need to put across an important point.

The outcomes of those discussions are reflected in the pleadings that were made to the court by the Government, which we shared with the committee some months ago. The documents that we released confirm that, in September, the clear view of counsel was that our prospects were good. They identified risks, as such opinions always do, but it was a positive assessment of our case. As time went on and problems emerged, the picture shifted, and external counsel became concerned and then alarmed. However, as late as in a note dated 11 December, the Lord Advocate was clear that there should be no question of conceding. Even on 17 December, external counsel agreed that the case remained stateable. It was the note of counsel of 19 December that led directly to the case being conceded.

None of that is hidden. Let us be frank about what we have released. It paints a clear picture—warts and all—and no embarrassment for the Government is spared in the publication of those documents. It is worth reflecting for a moment on the significance of what the Government has done in that case. We have taken the extraordinary and unprecedented step of publishing formal legal advice of the kind that no previous Government in Scotland has published and we have done so in response to the request of the committee and to motions that were passed by Parliament. In any fair interpretation of what the Government has done, the Tories’ pursuit of the motion today is now entirely baseless. With an election only weeks away, I suspect that the reality is that they were always intent on pushing the motion to a vote, regardless of what action the Government had taken.

I have sought to provide the committee with the information that it needed to do its work. We have supplied the committee with thousands of pages of documents. I have sought to ensure that the Government—and all future Governments—retains its ability to take frank, unvarnished legal advice, and I have sought to meet my obligations to Parliament. There are always clearly conflicting judgments that have to be resolved, alongside those three factors.

It is now for this chamber to judge whether those actions, which were taken in good faith, are sufficient to command their confidence. Since January 2019, this Government has accepted that mistakes were made in the handling of those complaints. As a result, two women were badly let down, and the Government must and will learn lessons from those mistakes.

Photo of Jackie Baillie Jackie Baillie Labour

Before I turn to the substance of the debate, I will make a comment on motions of no confidence. I regard them as serious matters, not something to be brought forward without good reason and definitely not on the basis of political opportunism. Rather, they are a mechanism to hold the Government to account. Therefore, it is important to consider the substance of the issue that is before the chamber and decide on the motion on that basis; I do so as a member of the committee.

On 17 January 2019, the First Minister said:

“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”.—[

Official Report

, 17 January 2019; c 14.]

There were no caveats. She was not speaking personally; she was speaking as the head of the Government. There is no doubt about the First Minister’s meaning, but the Deputy First Minister appears to be wholly confused.

The committee has had partial information, delayed information and, in some cases, no information at all. The Government has treated a committee of the Parliament with contempt, and it has treated the Parliament with contempt, too. Let us not forget that the two votes in the chamber asking for the legal advice to be provided to the committee were simply ignored. The Lord Advocate was not even asked for permission to release the legal advice, because the Scottish National Party Government had no intention of handing it over. Indeed, that is what the cabinet secretary reportedly told a meeting of the SNP group.

We could paper the walls of the chamber with the endless letters from the committee to John Swinney asking to see counsel’s advice. At every turn, the answer was no. We then got a summary of advice from 31 October onwards—written by a civil servant, not a lawyer—which was not to be published, was to be seen in a reading room and could not be referred to directly in oral evidence or in the committee report. That was very secretive and very convenient.

It took the threat of a no confidence motion, supported by the Greens, to come along for the SNP to react. The cabinet secretary then fell over himself to give us the legal advice—well, at least some of it. There was then a drip, drip approach, with some of the legal advice kept back until after the First Minister had appeared to give oral evidence before the committee. However, I have to say, Presiding Officer, that the legal advice is still not all there.

I am not being pedantic for the sake of it. There were meetings in December. There were two critical meetings on 2 and 13 November, the latter involving the First Minister, the permanent secretary and the First Minister’s chief of staff, together with senior counsel. It is inconceivable that no notes were taken. The cabinet secretary’s response to the committee and to the chamber today is that there were no minutes, but there will have been notes—there absolutely will have been notes. Scottish Government lawyers and external counsel are required to take notes; it is a matter of professional duty to do so. The notes that were taken by them should be released to the committee. There can be no debate about that—absolutely none. The Government has waived legal privilege over other documents. Ultimately, those notes belong to the Scottish Government, and there is absolutely no reason for it not to release them to the committee immediately—unless, of course, it has something to hide.

The SNP Government has form. It withheld documents from the judicial review, which resulted in the “professional embarrassment” of its own senior counsel. It withheld documents despite a search warrant in the criminal case against Alex Salmond, which is, in itself, a crime. It has also withheld documents from the committee. There is a pattern of behaviour here, and it is one of obstruction, secrecy and contempt for the institution of this Parliament.

The motion of no confidence may be in John Swinney, but I am clear that it is the behaviour of the secretive national party that is truly outrageous.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

It gives me no pleasure whatsoever to rise to speak in favour of the motion. We have better things to be doing with our time. By rights, we should be focused on other things right now. We are, after all, in the last days of a parliamentary session and in the teeth of a global pandemic. By rights, the Salmond inquiry should have concluded months ago, with complainers allowed to forget about this sorry business. It did not, so they have not. By rights, the disclosure of all relevant material and evidence to our committee should never have been an issue for parliamentary debate, given that the First Minister promised our inquiry ready and total access to the documents that we needed.

It is entirely due to the obstruction and sleight of hand deployed by this Administration that we have arrived at this point and Liberal Democrats have no confidence in the Deputy First Minister. Ahead of the First Minister’s appearance before our committee, her deputy assured us and the watching public that all relevant legal advice had been disclosed in good time for her to answer to it, but the worst of it appeared after the fact. That was bad faith on the part of the Deputy First Minister. My colleagues and I could and would have asked different questions of the First Minister had we seen on Tuesday that which was delivered to us on Thursday and on Friday. Those documents revealed the enormity of the embarrassment to senior counsel, and their threat to resign was confirmed in documents that were received only late last week.

What has been provided to us today is one thing; what is missing is something else entirely. Both Ruth Davidson and Jackie Baillie have highlighted several meetings and consultations that were without minutes. The meeting of 13 November is critical, because it had in attendance the First Minister and the permanent secretary, and it was just a fortnight after senior counsel had told the Government that it was likely to lose and probably should concede. In that same advice from 31 October, Roddy Dunlop QC told the Government that folding then could allow the Government to restart the complaints handling process, offering the women at the heart of the process a fair hearing with appropriate safeguards in place. I asked the First Minister about that when she came to our committee and she confirmed that the women were never notified about that possibility and that their views were never sought. The Government was at a crossroads in those vital days, and the advice that was received and decisions that were taken at that meeting could have shaped the final outcome entirely.

The optics for a Government already mired in accusations of a cover-up over this are terrible. Either explanation could point to a breach of the ministerial code. Not taking a minute is a breach in and of itself, but far worse is that the minutes of those meetings could have been deliberately held back from our committee to protect the First Minister by hiding a more ruinous breach on her part. We will never know. It is astonishing to learn also that perhaps even counsel are unable to produce notes of that meeting, so we will have no idea of their read-out whatsoever.

I do not harbour personal animosity towards John Swinney, but this is the second time that he has tested the confidence of the Parliament. Although he might escape with his job intact today, I put him on notice that there may be a third motion of no confidence in him. A motion in the name of Willie Rennie was passed in the chamber last month compelling John Swinney to release the Organisation for Economic Co-operation and Development review of secondary education. To date, he has not done that, so the Deputy First Minister stands again in contempt of Parliament and again he may be subject to its judgment if he does not produce the review in short order. I say to Mr Swinney that he should act on the Parliament’s instruction that he produce the OECD report or we will be back here next week or the week after with a similar motion to today’s, and he might not be so certain of Green Party support on that issue.

Photo of Patrick Harvie Patrick Harvie Green

The Scottish Greens supported the creation of the Committee on the Scottish Government Handling of Harassment Complaints and wanted to see it focus on that important issue in order to understand the challenges, identify what went wrong and ensure that improvements were made for the future, because addressing the failings—both real and perceived—in that process is vital for giving people who wish to complain about inappropriate behaviour the confidence to do so and the reassurance that they will be treated with respect. However, what should have been an inquiry strictly focused on that issue of how allegations are handled was allowed to become nothing more than shabby political theatre.

In my view, members who should have been focused on the interests of complainants in the past and in the future have clearly been more obsessed with the idea of winning a political scalp. The effect of that has been to set back the objectives that we should all share. Emma Ritch of Engender said:

“One of the things women are most attuned to when making complaints is the prospect of losing control over the process. What has happened with the Salmond inquiry has magnified this: that you could find yourself at the centre of a national scandal, where people feel free to impugn your motives and everything you want to talk about becomes about party politics or the constitution.”

Many of us have expressed similar concerns.

Despite those concerns, when the Parliament was asked, towards the end of last year, to vote on the need for legal advice to be provided to the committee, the Scottish Greens backed that position, and we were right to do so. If John Swinney had dug in his heels and continued to refuse, his position would have been untenable. Equally untenable is the position of those who demanded the First Minister’s resignation before even hearing her evidence and that of those who, last week, described the published legal advice as “damning” and a “crushing blow” but who now say that it is insufficient to draw conclusions from.

The Conservatives, in particular, have allowed a committee inquiry that should be focused on serious matters to descend into political farce. Why? Because they have nothing else to offer the people of Scotland. They have no positive vision of the country’s future; all they have is a desperate attempt to weave conspiracy theories. In appearing to take every word that came from the lips of Alex Salmond as unquestionable truth, they have ended up sounding exactly the same as the StuAnon cultists of Mr Salmond’s own fanbase. Both the behaviour of the former First Minister and the Government’s attitude throughout the inquiry have played a large part in this debacle. However, those using conspiracy theories to attack their opponents or promoting delusional ideas of Scotland being some sort of corrupt failed state must ask themselves how on earth they ever expect to lift Scottish politics up from the low point that they have brought us to.

When the committee finally produces its long-overdue report, I will be looking only at the issues of substance that address the question of why complainants raising allegations of harassment were failed and how we can ensure that that never happens again. I sincerely hope that the committee will choose—even at this late stage—to focus on that. The shallow game of winning political scalps should not be anyone’s priority, and the Greens will have no part in it.

Photo of Miles Briggs Miles Briggs Conservative

I grew up in the village of Bankfoot, in Perthshire, and I remember the first time I ever met a politician, which happened when I was in primary school. He was our local MP, John Swinney. I know myself, and I know from friends and family who still live in Perthshire and from colleagues from across the chamber, that John Swinney is a respected man.

However, that is not what the debate and the motion are about. The debate is about the total disrespect that the Scottish National Party Government has shown to a committee of this Parliament.

It was the First Minister, Nicola Sturgeon, who tasked John Swinney with overseeing the investigation and giving the committee access to all the information that it requested. After two years, does anyone sitting here today seriously believe that that has happened? It is therefore little wonder that MSPs from across the parties who are on the committee do not now believe that we will fully understand what went on in Government or within the SNP.

I pay tribute to the members who sit on that committee for the work that they have attempted to undertake over the past two years to get the legal advice. Jackie Baillie said last week:

“In my 22 years in Parliament I have never been so obstructed, unable to do my job, as I have been on this committee.”

That should speak to all of us.

The Parliament voted by a majority on two separate occasions for SNP ministers to publish legal advice and to provide the committee with all the evidence that has been requested. That has not been provided. In both cases, the Deputy First Minister ignored votes taken in the chamber. It was only after this motion of no confidence was put on the table that we saw the Government provide the committee with some—limited—information.

As late as yesterday, the committee’s convener was writing to request that ministers publish, as a matter of urgency, notes and emails regarding 17 meetings held with lawyers. Linda Fabiani, the convener, said that the committee is not reassured that it has received all relevant information.

At every turn, SNP ministers have evaded the committee’s requests for evidence, redacted key information and disrespected the will of the Parliament. The question is, who in Government will take responsibility? SNP ministers are undermining the credibility of our Scottish Parliament and its ability to hold the Government to account.

As has been said, the Deputy First Minister may, indeed, survive the vote of no confidence tonight, but the damage that the SNP has inflicted on this institution will be longer term. I hope that, in the coming weeks, when the First Minister and the Deputy First Minister finally take responsibility for this scandal, they will reflect on the damage that they have done to the integrity of our Parliament, our Crown Office and the permanent secretary.

The Presiding Officer:

That concludes the debate on the motion of no confidence. The vote on the motion will be taken at decision time, which will be at 8 o’clock this evening.

Photo of Jackie Baillie Jackie Baillie Labour

On a point of order, Presiding Officer. I regret having to make this point, but I tried to intervene on the cabinet secretary and he would not let me do so. I would like to establish whether there are, indeed, notes of those meetings, as opposed to minutes.

The Presiding Officer:

Thank you, Ms Baillie. That is not a point of order, but I am sure that the point has been noted by the Government and will be taken account of.

There will be a short pause before we move on to the next item of business. I remind all members who are leaving to follow the one-way systems, wear their masks and observe social distancing rules.