Meeting of the Parliament (Hybrid) 25 November 2020
Earlier this month, when Parliament last debated this issue, I set out the reasons why Scottish ministers considered that the balance of public interest lay in maintaining legal professional privilege. After that debate, Parliament voted in favour of the motion calling on us to publish that legal advice. I take that vote seriously, and the Scottish Government always seeks to respect decisions that are taken by Parliament.
On 10 November, the convener of the committee wrote to me asking that the legal advice be released by Friday 13 November, three days later. I wrote back to the convener on 13 November, setting out my intention to consider with my ministerial colleagues both the vote of the Parliament and the arguments put forward during the debate.
In that letter, I explained that, even if ministers were to decide that the balance of public interest lay in disclosure of legal advice, we would have to obtain the prior consent of law officers, which could be given only if there were compelling reasons for doing so. What is more, if the law officers consented, significant further work would be required to implement that waiver of legal professional privilege.
Documents already provided to the committee, and those prepared for disclosure in the near future, which I have already written to the convener to make clear are being submitted to the committee shortly, would need to be reviewed in order to remove any legal privilege redactions and to add any redactions needed to protect the identities of the complainers or to comply with data protection law. That is an important point to appreciate. We are not talking about two or three documents that clearly constitute legal advice, which we could release and which would satisfy the call for us to waive legal privilege. The Scottish Government has already provided more than 1,000 pages of documents to the committee and has also processed at least the same again for release, pending agreement with the former First Minister’s lawyers.
Each of those documents would need to be reconsidered and potentially released to the committee in a different form; that would take time.
I set out that detail to address the comments of those, including Mr Fraser, who have criticised the Government for not immediately releasing the legal advice and to explain the scale of the task involved. That would be a serious and significant decision for the Government to take and an equally serious and significant undertaking to fulfil.