Motion of No Confidence

Part of the debate – in the Scottish Parliament on 10th March 2021.

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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.