Meeting of the Parliament (Hybrid) 25 November 2020
Three weeks have elapsed since the Scottish Parliament agreed to a motion calling on the Scottish Government to publish all the legal advice that it received regarding the judicial review taken by the former First Minister Alex Salmond. In response, the Deputy First Minister said that
“ministers always seek to respect the decisions that are taken by the Parliament”,
and that he would
“now consider the implications of the motion”.—[Official Report, 4 November 2020; c 90.]
The committee specifically asked the Scottish Government to provide its legal advice by Friday 13 November. That deadline was not met, and the committee does not consider the Deputy First Minister’s explanation for that to be acceptable.
Since then, the Deputy First Minister has been very busy. Last Thursday, he refused the committee’s request to take oral evidence from two civil servants on the Scottish Government’s handling of complaints, on the pretext that they might inadvertently breach a court order or undertaking. The convener replied in writing on behalf of the committee, stating that that was “unacceptable”, given that
“it is the Scottish Government which has put its own employees in this position.”
On 3 November, Paul Cackette, the former director of the Scottish Government’s legal services, told the committee that it would be possible to calculate the approximate cost of the time that Scottish Government lawyers put into working on the judicial review, and that he could and would do that. With the scale of the costs incurred by the Scottish Government’s decision to contest the judicial review already confirmed as being more than £630,000, it is now apparent that the actual cost must be nearer to £1 million, instead of the £500,000 that the Scottish Government originally acknowledged. Once again, the Deputy Minister stepped in. On 13 November, he wrote to the committee to clarify that it was not possible to provide an accurate figure for the total cost of the legal advice given to the Scottish Government.
A very distinct pattern has emerged of the Scottish Government constantly thwarting the committee’s efforts to fulfil the inquiry’s remit—and now, it would seem, even the will of the Parliament—because, quite simply, it thinks that it can.
The committee’s convener has voiced her frustration at the continued and unacceptable delays that the committee has faced as a result of the Scottish Government’s behaviour. As deputy convener, my concern goes deeper; it raises the issue of trust. The legitimate criticisms that are levelled against the Scottish Government are made against the background of the former First Minister and others alleging a conspiracy against him. This is in a modern, supposedly democratic Scotland, where the judicial review was conceded by the Scottish Government on the basis that its handling of the harassment complaints procedure against the former First Minister was unreasonable and “tainted by apparent bias” and where the head of our independent prosecution service is also a member of the Scottish Government and is its chief adviser on legal matters, with collective responsibility for a failed judicial review.
The Scottish Government has serious questions to answer and information to release without further delay or obfuscation. It must start today by releasing counsel’s advice and the other legal advice on the judicial review that it received. The complainers caught up in this mess, the general public and our democratic process demand nothing less.
17:08