Meeting of the Parliament (Hybrid) 04 November 2020
I am grateful for the opportunity to speak in support of the Conservative motion. I will come to the substance of the legal advice in a moment. Before I do, I note that this is not the speech that I had originally intended to give. Had my amendment been selected last night, I would have set out why the Parliament should direct the Scottish Government to urgently expand the remit of the ministerial code investigation into the actions of the First Minister.
At this time, James Hamilton QC is charged with the investigation only of the meetings that were held between the First Minister and Mr Salmond that were connected to the complaints against him and the Government investigation of the same. However, significant and detailed evidence has been passed to our inquiry that casts doubt on the First Minister’s version of events. For legal reasons, the evidence cannot yet be published, but I know that I speak for colleagues when I say that, when we saw it, we recognised the immediate need for the ministerial code referral to be expanded to examine whether Nicola Sturgeon knowingly misled the Parliament under the terms of section 1C. Despite what the First Minister told Oliver Mundell this past week, this is a quasi-judicial process and the only body that can expand its remit is the Government itself, so I ask it to do that today.
The Liberal Democrats will support the motion. As a member of the inquiry, I have been frustrated by the grey wall of silence that we have encountered from the civil service in respect of nearly every aspect of our inquiry, and many answers will flow from the legal advice. The Government has clung so hard to legal professional privilege during our deliberations that the inescapable conclusion of any dispassionate observer must be that there is some reason why it does not want us to see the advice.
The judicial review was launched to settle the legality of the complaint-handling process, but it was not the only means of doing so. Mr Salmond offered arbitration several times, to adjudicate not the complaints but how the Government had handled them. There was obviously a clear advantage for the former First Minister in the privacy of arbitration—but so, too, for the complainers, and, for me, that is what the issue is all about. I credit Jackie Baillie for an excellent speech about why we should always remember the complainers who are at the heart of the investigation.
Judicial review is a winner-takes-all event, and one of the consequences of the judicial review is that the original complaints will probably never see the light of day again or receive a fair hearing under any process that is used by the Scottish Government. With arbitration, the complainers would have had a fighting chance of starting again and having their complaints heard properly from the beginning, without the public intrigue that the judicial review brought with it. Without the legal advice, we will never understand why the Government took the decision that it did.
The First Minister’s evidence suggests that the Government had been aware of the risk of judicial review since the spring of 2018. As we heard from Murdo Fraser, Mr Salmond had received advice from senior counsel suggesting that his case was very strong—a slam dunk. Therefore, it is hard to imagine that the Government did not also seek legal advice from the outset.
Our committee is charged with understanding with whom the responsibility for the failure ultimately rests. If, at some point, the Government was offered the opinion of senior counsel that the probability of victory was vanishingly small, why on earth did it proceed? It would have been much easier just to set fire to £500,000 on the front step of St Andrew’s house and leave the women at the heart of the matter utterly exposed. The Parliament needs answers, and those answers lie, in part, in the publication of the Government’s legal advice.