Meeting of the Parliament (Hybrid) 04 November 2020
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.