Meeting of the Parliament (Hybrid) 25 November 2020
I think that Mr Cole-Hamilton knows the answer to that, but I presume that he raises it so that I can confirm it.
The ministerial code prevents me from disclosing whether I have taken the advice of the Lord Advocate and from disclosing the sources of any legal advice that I have taken. Mr Cole-Hamilton knows the obligations that I am under; they cannot be casually dismissed because, if I dismissed them, I am sure that members would complain that I had breached the ministerial code by which I am held to account.
Over the course of more than two hours, the Lord Advocate responded to questions from the committee and gave detailed descriptions of the Scottish Government’s decision making and legal position at each stage of the process. During the meeting, he committed to write to the committee on specific points and stands ready to provide further information as required. Since the last debate on the issue in Parliament, significant further detail has been provided to the committee through the Lord Advocate’s evidence, so the Government has endeavoured to respond constructively to the debate in Parliament that took place in early November. No final decision has been made by the Government in our further consideration of the issue. I confirm that the issue was discussed with the Cabinet yesterday. The First Minister recused herself from that part of the meeting, as is appropriate. Given the seriousness of the issue involved, before the Government and I come to a conclusion, I will consult the Cabinet again.
I am reflecting on the arguments that were put forward in the previous debate and I will consider any new arguments put forward today that will help to inform the decision-making process.
The Government has made available to the committee significant detail on our legal position through the evidence that has already been provided by the Lord Advocate. This is not a straightforward decision. There is no clear precedent for the Scottish Government to waive legal privilege in these circumstances and there is real potential for negative consequences from such a decision. It would potentially create a new precedent that would potentially undermine the Government’s ability to receive legal advice in all candour that would enable it to take decisions during litigation in the future. Taking the time necessary to consider the significant issues raised by the request for release of our legal advice, including the precedent involved, is therefore only right and proper. To do anything else would not respect Parliament in this or future sessions, nor would it respect the significant issues of sexual harassment that lie at the heart of the debate.
I move amendment S5M-23445.2, to leave out from “notes that the legal advice” to end and insert:
“acknowledges that this complex matter is being actively considered by Ministers; notes that the right of private access to legal advice is a fundamental right under Scots Law, and recognises that, since that vote of the Parliament, the Lord Advocate has shared extensive detail of the Scottish Government's legal position with the Committee on the Scottish Government Handling of Harassment Complaints at its meeting on 17 November 2020, will be writing further to the Committee following that meeting, and stands ready to provide additional information as the Committee requires.”
16:51Motions, questions or amendments mentioned by their reference code.
- S5M-23445.2 Legal Advice Motion