Meeting of the Parliament (Hybrid) 04 November 2020
The debate has been short but illuminating. The Opposition parties across the chamber are of one mind: they believe that the Scottish Government should provide the committee with its legal advice in relation to the judicial review of the harassment policy. SNP members on the committee agree, too. The remit for the committee was agreed by the Parliament as a whole. This is about the credibility of the Parliament and the accountability of the Scottish Government.
The committee has a job to do and, to be blunt, the Scottish Government is obstructing its work. Whether it is withholding information or the sometimes apparently serial memory loss on the part of senior civil servants, it amounts to the same thing: a lack of co-operation with the committee. Some people, although I am not one of them, might say that it is a deliberate lack of co-operation.
The First Minister’s commitment was made on behalf of the Scottish Government, which she leads. I appreciate that she has recused herself, as she will be a witness to the committee, but that is not an excuse for the Scottish Government not to fulfil that promise. The Deputy First Minister can release the legal advice if he chooses to do so. Andy Wightman, in an excellent speech, explained exactly why that is the case. The issue is not that the Scottish Government cannot tell us; it is that the Scottish Government will not tell us.
I will give one example of the obstruction that we have faced. Early letters from the Deputy First Minister about the judicial review said that the Scottish Government could not share any information, as it was a matter for the Court of Session. That was simply not true. The Government could have shared with the committee the information that it had presented to the court. However, it took the attendance of the Lord Advocate, giving evidence under oath, and a letter from the committee to the Court of Session to establish that that was the case.
We have heard that an army of lawyers was involved for the Scottish Government—at least 10 to 12 of them—so I am not persuaded that the Deputy First Minister did not understand that he could share that information. If it was not ignorance that prevented the information from being shared, what on earth was it? Why did it take the presence of the Lord Advocate at the committee, under oath, to stop the nonsense coming from the Scottish Government?
I will not rehearse the evidence that the committee has received. Suffice it to say that I have genuine concerns about the blurring between the party and the state, but that is for another day. The committee has been told that the legal advice was taken throughout the judicial review process. An FOI request from September 2019 revealed that there were 17 meetings with counsel between 23 August and 7 January. The counsel remained the same throughout, so there would have been consistency in their thinking and their advice.
Just yesterday, the Scottish Government’s lawyer in charge agreed that even when the prospects of success were not good, the Government might still decide to proceed. That might be questionable, but we need to have the legal advice to understand that. When the prospects of success nosedived after the role of the investigating officer was revealed, why did it take the Scottish Government almost three months to concede the case? Having the legal advice provided will help to address those fundamental points in relation to the judicial review.
Of course, the Scottish Government has form. We are used to not getting information through FOI requests—we are used to that being withheld. Now the Government is withholding information from the committee; it even tried to withhold information from the Court of Session until it was forced to produce it. It is very much a case of secret Scotland with this Government.
It is time for the Scottish Government to end the secrecy and give the committee the legal advice or tell the people of Scotland what it has to hide.
15:51