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Chamber

Meeting of the Parliament (Hybrid) 04 November 2020

04 Nov 2020 · S5 · Meeting of the Parliament
Item of business
Scottish Government Handling of Harassment Complaints

The motion asks Parliament to call

“on the Scottish Government to publish all the legal advice it received regarding”

a judicial review. In my speech I will, inevitably, cover some of the same ground as the cabinet secretary, because his argument exposed the deep flaws that are at the heart of the Conservatives’ position.

The Conservatives lodged the motion despite the fact that they are more than aware that in the United Kingdom it is the law officers who are responsible for providing legal advice to the Government. Moreover, successive Governments of all political persuasions have observed the long-standing convention that the advice that they receive from the law officers is not disclosed outside the Government; indeed, Murdo Fraser himself made that point in his opening speech. The convention is one that the Conservative Government at Westminster adheres strictly to, with the clear rationale for the convention being well understood—that it enables the Government to have access to full and frank legal advice.

That position is well laid out in the “Scottish Ministerial Code: 2018 edition”, which states:

“Ministers may acknowledge publicly that they have received legal advice on a particular topic, but must not divulge either who provided the advice or its contents (whether it is from the Law Officers or from anyone else). This applies to all forms of legal advice”.

The code goes on to say that the

“approach is required in order to take account of the public interest in maintaining ... The right to confidentiality of communications between legal advisers and their clients”.

Of course, it is true that exceptions have been made in regard to publicising such advice in truly exceptional circumstances, such as the UK going to war in Iraq, or in major public policy areas, as has been pointed out by the Deputy First Minster. However, I submit that the case that is being put forward by the Conservatives does not meet the bar of exceptional circumstances or major public policy. I think that the Conservatives and, indeed, the whole Parliament know that to be the truth.

In lodging the motion for debate today, the Conservatives also knew full well what the Scottish Government’s position would be, because that position is well established.

Given those circumstances, the question has to be asked: what are the purpose of and motive behind the Conservative motion? Given the background, the only possible conclusion that can be reached is that its purpose is an ill-conceived attempt to precondition the outcome of the committee inquiry into the Scottish Government’s handling of the harassment complaints, and that the motive is an attempt to politicise the process and undermine the credibility and position of the Scottish Government, no matter how futile that attempt might be.

To exacerbate matters, the motion has been lodged during a coronavirus emergency that has now killed more than 47,000 people in the UK and, sadly, claimed the lives of almost 400 people yesterday, with 50 of them in Scotland alone in the past 24 hours. However, there is an important Conservative motion for debate today, in the name of Donald Cameron, in relation to Covid-19 deaths in care homes. I say to the Conservatives in all seriousness that had they devoted all their time to a motion that was concerned with the Covid-19 emergency, people in Scotland might have taken their concerns more seriously.

However, the truth has been bared for all to see: the Conservatives would rather indulge in political stunts than properly address the real and deep concerns of the people Scotland about the Covid-19 emergency.

15:30  

In the same item of business

The Presiding Officer (Ken Macintosh) NPA
The next item of business is a debate on motion S5M-23218, in the name of Murdo Fraser, on the Scottish Government’s handling of harassment complaints. 14:53
Murdo Fraser (Mid Scotland and Fife) (Con) Con
Presiding Officer, this afternoon the Scottish Conservatives are dividing our debating time into two parts. Shortly, my colleague Donald Cameron will lead a ...
The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney) SNP
Scots law provides that any person who seeks legal advice has the benefit of confidential communications with their lawyer. That is an important and well-est...
Daniel Johnson (Edinburgh Southern) (Lab) Lab
Will the member take an intervention?
John Swinney SNP
If Mr Johnson will forgive me, I need to make progress. I have a lot of ground to cover. It is advice that informs that decision. It is the decision itself ...
Oliver Mundell (Dumfriesshire) (Con) Con
Will the Deputy First Minister take an intervention?
John Swinney SNP
If Mr Mundell will allow me to finish the quote, I will give way to him. The Lord Advocate said: “Its waiver is exceptionally rare, and it happens against ...
Oliver Mundell Con
Does the Deputy First Minister honestly think that in this case, the circumstances are “routine”? Does he not think that it is exactly the sort of exception ...
John Swinney SNP
If Mr Mundell looks at examples of where the Government has waived legal professional privilege, he will see that they have been major issues of public polic...
Oliver Mundell Con
Will the Deputy First Minister take an intervention?
John Swinney SNP
No—I am answering the member’s intervention. The point that the Lord Advocate made in the quote that I read out is that it is particularly relevant in a sit...
Oliver Mundell Con
Will the Deputy First Minister take an intervention?
John Swinney SNP
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 ...
Jackie Baillie (Dumbarton) (Lab) Lab
I begin by quoting the words of the First Minister in the chamber on 17 January 2019, because it is worth reminding members of what she said. She stated: “T...
Andy Wightman (Lothian) (Green) Green
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 all...
Alex Cole-Hamilton (Edinburgh Western) (LD) LD
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, ...
The Presiding Officer NPA
We do not have a lot of time for the debate, so I urge members to keep their remarks to the four minutes that they have been allocated. 15:21
Margaret Mitchell (Central Scotland) (Con) Con
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...
Bruce Crawford (Stirling) (SNP) SNP
The motion asks Parliament to call “on the Scottish Government to publish all the legal advice it received regarding” a judicial review. In my speech I wil...
Daniel Johnson (Edinburgh Southern) (Lab) Lab
This is an important debate because, undoubtedly, the circumstances surrounding it are some of the most troubling issues that we have dealt with since devolu...
Annabelle Ewing (Cowdenbeath) (SNP) SNP
In this short debate of one hour and 10 minutes—the Tories have opted to use only half of their Opposition time for it—I wish to focus on the issue of legal ...
Annie Wells (Glasgow) (Con) Con
I very much welcome the opportunity to speak in this important debate. It is right that responding to the Covid-19 pandemic has been at the forefront of our ...
Shona Robison (Dundee City East) (SNP) SNP
For me, today has been a tale of two Parliaments. The first, this morning, was a meeting of the COVID-19 Committee, on which I serve, in which we scrutinised...
The Presiding Officer NPA
We move to the closing speeches. 15:46
Jackie Baillie Lab
The debate has been short but illuminating. The Opposition parties across the chamber are of one mind: they believe that the Scottish Government should provi...
John Swinney SNP
Jackie Baillie said that she would not rehearse the business of the committee and the substance of the inquiry. Some members have raised elements of the subs...
Oliver Mundell Con
Does Mr Swinney not recognise that the argument that he is making makes it even more compelling that the judicial review legal advice, which can be published...
John Swinney SNP
I am coming on to that point, which is about the material that the committee already has. The Government has already provided the committee with the pleading...
Alex Cole-Hamilton LD
I will try another way of approaching the issue. I understand that Mr Swinney is not going to release the legal advice, but given the decisions that the Gove...
John Swinney SNP
I remind Alex Cole-Hamilton what I said at the outset: I will not get into the substance of any aspect of the processes in question, because it is not approp...