Hansard

On 6 February 2019, Parliament voted to establish a committee to inquire into the Scottish Government’s handling of harassment complaints in the light of allegations made against former First Minister Alex Salmond, which led to the judicial review that was conceded by the Scottish ministers at a cost of more than £500,000. The point of the inquiry is to establish what exactly happened and, as a result, to ensure that the procedures are fit for the future.

As we have heard, the committee has asked on a number of occasions for the legal advice that is referred to in the motion, but the Government has refused to hand it over. I acknowledge the Deputy First Minister’s point that ministers do not, as a rule, publish legal advice. Doing so, it is argued, would compromise the requirement for frank and independent advice. If the providers of such advice knew that it could be released at a later date, such frankness could be compromised to the detriment of good government. In recent years, the Government has refused to publish legal advice on the legality of a second independence referendum without a section 30 order, and it has refused, in response to requests from the Law Society of Scotland, to publish its legal advice in relation to the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

However, legal advice can be published if the public interest requires it, as Murdo Fraser mentioned. Sections 21 and 28 of the Inquiries Act 2005 give powers to the chair of any public inquiry to require evidence and documents to be produced, including legal advice. Under the freedom of information regime, legally privileged information is a statutory exception, but the Scottish Information Commissioner can order disclosure when there is a compelling public interest for it. Given that there has been a freedom of information request for the information, the commissioner may yet do so. As was set out in the letter of 7 September from Mr Swinney to the committee, paragraph 2.40 of the Scottish ministerial code makes it clear that disclosure can be made

“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter”.

The Committee on the Scottish Government Handling of Harassment Complaints is not a public inquiry, but it is a special committee of Parliament, established by a resolution of Parliament to inquire into specific matters of public interest in relation to an apparent serious failing of Government. The idea that legal professional privilege always applies is wrong. A public inquiry can overrule it, it can be waived under FOI and, if ministers consider it appropriate, they can waive it under the Scottish ministerial code. The committee’s letter of 30 September 2020 to John Swinney, which references the Deputy First Minister’s 7 September letter to the committee, states that

“the committee notes that the Scottish ministers have, on previous occasions, chosen to waive legal privilege. It did not impose a restriction notice on the disclosure of legal advice to the Scottish child abuse inquiry or the (UK) infected blood inquiry as well as limited disclosure in the trams inquiry.”

I repeat that it is possible to waive legal professional privilege when the public interest demands it.

The only real question that the Scottish Government and Parliament face is whether it is in the public interest to disclose the legal advice. The Government has claimed that, in its view, it is not. However, the Parliament is invited today to, in effect, decide whether the release of that advice is in the public interest. I submit that this democratically elected Parliament is a better barometer of the public interest than the Government, which is an interested party in the inquiry.

Scottish Greens believe that the release of legal advice is in the public interest, since the whole point of the committee’s work is to consider the Government’s handling of complaints under the complaints procedure—the very substance of the judicial review and thus the reason why the legal advice plays a central role.

The Deputy First Minister said that “ministers make decisions”, but assessment and critical scrutiny of that decision making cannot be done in the absence of the advice that informs it. The committee has, unanimously, asked the Government for that advice, and MSPs from every party in the Parliament have agreed that the committee needs to see it.

The committee serves the Parliament, so this evening I will be particularly interested in how SNP backbenchers vote. Will they stand up for their parliamentary colleagues on the committee and join all other parties in supporting it in its endeavours, or will they defy their parliamentary colleagues and side with the Government—an interested party that refuses to release the advice?