Meeting of the Parliament (Hybrid) 04 November 2020
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—[Interruption.]—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.
15:39