Meeting of the Parliament (Hybrid) 04 November 2020
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.
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