Hansard

Here we go again. As members have already stated, the Parliament expressed its will in unequivocal terms and voted on 4 November. I want to reflect on the question about timetables that Murdo Fraser asked the cabinet secretary. There are two questions that the cabinet secretary really needs to address. First, in principle, will he and his Government agree to release the advice? Secondly, if the answer to that is in the affirmative, can we have a conversation about timescales? However, he failed to answer that question.

Alex Cole-Hamilton asked the cabinet secretary whether he had requested that the Lord Advocate consider whether he was prepared to give his prior consent. Essentially, the answer that the cabinet secretary gave was the law officer convention, which is mentioned in paragraph 2.39(b) of the Scottish ministerial code. That paragraph states that the convention prohibits ministers

“other than in exceptional circumstances”

from disclosing

“the fact that legal advice has or has not been given to the Government by or sought from the Law Officers”.

The convention does not cover paragraph 2.40 of the code, which states that

“the Law Officers must be consulted”

if ministers are minded to release legal advice.

As many members have made clear, there is no doubt that, for the committee to discharge the responsibilities that Parliament has given it, it needs to have access to the legal advice. No one—not the cabinet secretary or any member of the Scottish Parliament—has suggested otherwise. How can an inquiry that, in substantial part, is concerned with a judicial review be able to assess the full circumstances of the matters that it is considering without sight of the relevant advice?

The conclusions that the committee eventually comes to when it reports could be anywhere on a spectrum, from the innocent to the malign, and it would be utterly inappropriate right now to speculate on that question. However, it serves nobody’s interests that its deliberations may be compromised by a lack of access to key information.

It is not helpful to speculate about what the advice may be, either. From personal experience, I am well aware that legal advice is just that—it is legal advice. In my recent defamation case, I did not follow legal advice at one key moment, and I am glad that I did not. For a defender in a civil action, there are always other considerations. In the case of the Scottish ministers, there were the legitimate interests of the complainers and the legitimate desire perhaps to see a point of legal interpretation tested in the courts.

Paragraph 2.30 of ministerial code states:

“the overarching duty on Ministers”

is

“to comply with the law.”

The law was, of course, a matter of dispute between Mr Salmond and the Government, and the court was the only place that could resolve that question.

The other duty that is imposed by paragraph 2.30 of the ministerial code is that ministers should

“ensure that their decisions are informed by appropriate analysis of the legal considerations and that the legal implications”

are properly considered in all decisions. That is not controversial, and it gives ministers a fair degree of leeway. As decision makers, they are not bound to follow legal advice any more than anyone else is. However, the judicial review was conceded, and complainers being badly let down by a process that was found to have been unlawful is at the heart of the matter. It is the committee’s job to ascertain why that happened. It simply cannot do so without sight of the legal advice.

In closing, let me be crystal clear about one thing. Paragraphs 2.38 to 2.41 of the ministerial code prohibit ministers from publishing legal advice unless it is deemed to be in the public interest and unless the consent of the Lord Advocate has been obtained. Last time, I argued that the Parliament is a far better arbiter of the public interest than ministers whose actions, in this instance, are being scrutinised by the committee. Therefore, where Parliament has instigated an inquiry into apparent serious failings in Government procedures and has voted to uphold the committee’s request for legal advice, it is simply inconceivable that the Lord Advocate would withhold consent unless there were compelling reasons in relation to, for example, the integrity of the justice system. However, this was a judicial review of a public authority’s decision. It was an important judicial review but a straightforward civil process whereby a decision was being challenged in court. That is all.

There is only one party who stands in the way of releasing the legal advice and one party who is defying the will of the Parliament and the committee. His name is John Swinney.