Meeting of the Parliament (Hybrid) 04 November 2020
I have to make further progress, I am afraid.
The Government is frequently involved in litigation and decision making as part of normal good government. As the Lord Advocate noted in his evidence, it is crucial that decisions can be taken with the benefit of full and frank legal advice.
If the Government were to waive its privilege in this case, I would be concerned that in any future high-profile litigation involving the Government, ministers might not be able to benefit from advice that is given on a full and frank basis should there be a fear that that advice might be published.
We all surely recognise the benefits for public policy and decision making if the Government can benefit from being able to take legal advice that is robust and which considers all possibilities and weighs up all considerations. None of us wants public policy and decision making to fall victim to legal advice that errs on the side of caution for fear of its publication.
The strength of legal privilege stems from a consistent application by a client—in this case, the Government—across its legal communications. Picking and choosing what to make public does not assist decision makers to make sound and reasonable decisions or assist Parliament and the public to hold the Government to account.
I have carefully considered the committee’s request that the Scottish Government waives legal privilege in this instance. I have concluded that the public interest in maintaining the privilege, including the negative impact of waiving privilege for all areas of Government intervention, outweighs any perceived areas of public interest in disclosing legally privileged material. The Scottish Government continues to assert legal professional privilege in relation to the work of the committee. That will not prevent us from continuing to co-operate with the committee’s work in the supply of documentation and the provision of witnesses. That has been the Government’s commitment throughout this process, and it will remain so for the remainder of the inquiry.
I move amendment S5M-23218.2, to leave out from “calls” to end and insert:
“acknowledges that legal professional privilege is an important established legal principle that gives both individuals and organisations the right to privacy in legal advice, that successive Scottish and UK governments of different political configurations have operated on the basis that legal professional privilege enables decisions to be informed by full and frank legal advice, and that, while maintaining its legal professional privilege, the Scottish Government has provided and is providing substantial documentation and other evidence to support the work of the Committee on the Scottish Government Handling of Harassment Complaints, including the Lord Advocate making himself available to provide oral evidence on relevant matters.”
15:08Motions, questions or amendments mentioned by their reference code.