Hansard

Presiding Officer, this afternoon the Scottish Conservatives are dividing our debating time into two parts. Shortly, my colleague Donald Cameron will lead a debate that looks at the crucial issue of the impact of the Covid-19 pandemic on our care homes. In advance of that, I am leading this short debate calling on the Scottish Government to publish the legal advice that it obtained in relation to the judicial review case taken against it by Alex Salmond in connection with its complaints procedure.

I say at the outset that I regret that we are having to spend debating time in Parliament on such an issue. It is necessary only because of the failure of the Scottish Government to respond to consistent calls from members of the Committee on the Scottish Government Handling of Harassment Complaints, speaking unanimously and on a cross-party basis, to publish vital information that the committee believes is essential to allow us to do our work. That led the committee convener, Linda Fabiani, to state on 29 September that the committee had been “completely frustrated” by the lack of evidence being provided from the Scottish Government, among others. A vital component of the missing information is the legal advice that informed the Scottish Government’s decision making—specifically, its decision to defend the judicial review pursued by Mr Salmond.

We know that Mr Salmond had counsel’s opinion, which said that his prospects of success in that case were substantial. We know that the Scottish Government conceded the judicial review, admitting that Mr Salmond was correct. We also know that the award of expenses paid to Mr Salmond—more than £500,000 of taxpayers’ money—was at the highest level available in the circumstances, and is a level of award made only when the defence has been conducted, in the words of Lord Hodge, “either unreasonably or incompetently”. We therefore know that something went far wrong with the Scottish Government’s legal case, and we need to understand why that happened and what led to such a loss of public funds. It is surely a matter of legitimate public interest to understand such a catastrophic failure within the Scottish Government that cost the taxpayer so dearly.

There is a long-standing convention that legal advice given to ministers is confidential, and that convention exists for good reasons. However, it can be overridden when there is an overwhelming public interest, and I believe that that applies in this case. The Scottish Government has published its legal advice on a number of occasions: in the contaminated blood scandal case; on the Scottish child abuse inquiry; and in relation to the Edinburgh trams inquiry. The Government has chosen to publish legal advice in the past, and there is no restriction on it doing so.

We have had repeated promises from the First Minister and the Deputy First Minister that the Scottish Government will co-operate with the inquiry. On 17 January 2019, Nicola Sturgeon told Parliament:

“The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request.”

She went on to say:

“My commitment is that the Government and I will co-operate fully with it”.—[Official Report, 17 January 2019; c 14.]

If those words mean anything, the Scottish Government should publish the legal advice that the committee is seeking.

On 1 October this year, the First Minister told members that all the information that the committee had asked for was being provided, except when there was a “legal reason” why it could not be. That statement is, I am afraid to say, simply untrue. There is no legal reason why the legal advice that we are seeking cannot be published. It is simply a matter of political choice by the First Minister and the Scottish Government. There is nothing in law preventing it from being provided.

Why does that matter? We know that the legal stance taken by the Scottish Government led to the loss of the judicial review case, and with it more than £500,000 of taxpayers’ money that was paid to Mr Salmond for his legal costs. If it is the case that the legal advice obtained by the Scottish Government, either in-house or externally, said that it had a good case to defend, lessons need to be learned about why such poor advice was offered to ensure that there is no repetition in future.

The alternative explanation is much more sinister and concerning. Mr Salmond’s allies believe that the legal advice obtained by the Scottish Government said that the judicial review case should not be defended as there was very little chance of success. If that is indeed what the legal advice said, a decision was taken at the top of the Scottish Government to defend the case regardless, and, in light of what we now know, that decision was irresponsible and reckless.

More worrying still is the accusation that the decision was made on political grounds, and that the Scottish Government was effectively pursuing a vendetta against the former First Minister, using public funds to do so. That claim might be nonsense, but it is impossible for members of the committee, or indeed the public as a whole, to reach a view on which of those explanations is correct in the absence of seeing the legal advice.

That is why the publication of the legal advice is vital to the inquiry, and it explains why all members of the committee, from all five political parties represented in the Parliament, have joined together in making calls for the legal advice to be published.

As matters stand, it is hard to avoid the conclusion that, to date, the Scottish Government has treated the inquiry with something close to contempt. In addition to the refusal to release vital information, we have now had an astonishing four occasions on which senior civil servants have come to the committee and given oral evidence and had to write to the committee subsequently to correct misleading statements that were given in a public session. That is simply not good enough.

It is essential to the work of the committee that the legal advice is made available to us. I hope that the Scottish Parliament will agree today to support my call for its publication. If we are successful in winning the vote later this afternoon, I expect the Scottish Government to respect that parliamentary vote and produce the missing documentation as a matter of urgency and, in so doing, to fulfil all the promises that have been made by the First Minister and the Deputy First Minister to be open and co-operative with the inquiry. To do otherwise would be unforgivable.

I move,

That the Parliament calls on the Scottish Government to publish all the legal advice it received regarding the judicial review into the investigation of the alleged behaviour of the former First Minister, Alex Salmond.