Meeting of the Parliament (Hybrid) 04 November 2020
On 8 January 2019, Lord Pentland announced that the Scottish Government had conceded the former First Minister Alex Salmond’s petition for judicial review on the grounds that the procedure was unlawful, the decision was taken in “procedurally unfair” circumstances and was “tainted by apparent bias”. The former First Minister was awarded an interim payment of £350,000, and a balance of £166,250 to cover his legal expenses, which were paid on the solicitor client scale, reflecting that the Scottish Government had conducted the litigation incompetently or unreasonably.
On 15 January 2019, Parliament agreed to establish a committee of inquiry to look into the Scottish Government’s handling of complaints against the former First Minister. The Alex Salmond harassment charges case followed, which was sub judice. Nonetheless, throughout 2019 and up to June 2020, the committee met in private and was determined to do all possible groundwork to enable it to hit the ground running when, on conclusion of the trial, it was able to meet in public and begin the formal evidence sessions. It did so for the first time in August 2020.
However, when seeking the relevant information to allow it to carry out its remit, the committee and its members have experienced huge frustration, as deadlines for productions are missed or information, such as that which was released in the Scottish Government’s first tranche, is supplied in a format that makes it virtually unintelligible. Quite simply, behind the scenes it has felt like wading through treacle to get straight answers to questions, or to receive information to allow proper scrutiny during evidence sessions. Instead, if evidence is produced at all, relevant deadlines are ignored, and the necessary information is frequently received the night before taking evidence.
Based on that, it is perhaps not surprising that we are having to resort to a parliamentary debate to call on the Scottish Government to waive legal privilege and release the advice that it received, which it has not done despite there being precedent for its doing so.
The evidence that is in the public domain confirms that arbitration was offered to, and rejected by, the Scottish Government well before the petition for judicial review was formally lodged in August 2018. Significantly, the unsuccessful challenge to the judicial review then cost the taxpayer a minimum of a staggering £630,000.
Information that has been received regarding the suggestion of arbitration confirms that the Scottish Government rejected arbitration because it was confident of the legality of the process. The former First Minister’s senior counsel, however, believed that the process was unlawful. The legality issue therefore had to be resolved either in private, in a confidential and binding arbitration, or in public in the Court of Session.
The position was that if the former First Minister’s legal advice was wrong, the process for judicial review would proceed; but if the Scottish Government’s legal advice was wrong, it would discover that that was the case without the expense of losing in a public court. Crucially, arbitration would have guaranteed confidentiality for the complainers, but they were never offered that choice.
In order for the inquiry committee to carry out its remit effectively, the Scottish Government must waive legal privilege and release the judicial review advice that it received. Only then can the required transparency and accountability be achieved for the complainers and the taxpaying public, who paid the six-figure costs of the judicial review.
I whole-heartedly support the motion in Murdo Fraser’s name.
15:25