Meeting of the Parliament (Hybrid) 25 November 2020
We should not be having this debate. I say to Government members who will likely criticise the use of parliamentary time for a topic such as this in the middle of a pandemic: I agree, but this is on the Government.
The Parliament has expressed a clear will that it wishes to see the legal advice regarding the conduct of the judicial review that was raised by the former First Minister. It did so three weeks ago, yet we are still waiting. The SNP Government is dangerously close to standing in contempt of the chamber.
Why does the legal advice matter? Because in its pages we will finally see the anatomy of a collective thought process that led to the collapse of a Government case at a cost to the taxpayer in the order of £1 million but, more importantly, because it will show why the women at the heart of this were denied a fair hearing and access to justice for complaints that will now most likely never see the light of day again.
The Committee on the Scottish Government Handling of Harassment Complaints has heard from those in the Government who were most connected to the judicial review, including those who head up the Government’s legal services division, the permanent secretary, who was the first of two named responders in the petition, and the Lord Advocate. However, although the Government’s legal position is a matter of public record, the legal advice is still shrouded in abject mystery.
The Government first sought the advice of independent senior counsel in September 2017, shortly after the original petition was launched. Before a judicial review is fully commenced, permission for it to be heard must be granted by the court. The criteria for granting permission to proceed hinged on the court’s belief that the petition in the name of Alex Salmond had a realistic prospect of success. Permission was duly granted by the court and the Government did not contest that ruling. From that, we can infer that, right out of the traps, the Government understood that there was a real prospect of defeat, with all that that entailed for the public purse and the complainers—but still, it decided to proceed.
Legal advice is never offered in absolutes. A Queen’s counsel will never tell a party that they will win a case. Instead, they will offer an assessment of the balance of probabilities, with the chance of success weighed against the risk of defeat. In the foothills of this judicial review, the Government believed that it was facing a challenge to the procedure. However, as the weeks dragged on, it became clear from the incremental retrieval of evidence by the Government—sometimes forcibly brought out by the court itself—that the Government was far more exposed on the application of that procedure by the civil service on the grounds of apparent bias.
That drip-drip release of emails and correspondence towards the ends of 2017, which would ultimately lead to the collapse of the case, was a shocking way for the Government to have behaved towards the court. Fundamentally, it changed the kind of difficulty that the Government was facing and, very probably, it gave cause for the Government’s senior counsel to threaten to resign.
Without the production of legal advice, the Salmond inquiry cannot hope to discharge its responsibilities in full. It will leave yet another tang of doubt around the actions of the First Minister, who we now know had ultimate sign-off over the tactics of how the judicial review was handled. The optics of that are terrible for the SNP and everything about it reeks of a cover-up.
It has been three weeks since the Parliament demanded the release of the advice and the Government remains defiant to the supremacy of the chamber. Our patience is at an end. Should the Deputy First Minister not deliver what we seek in short order, he may well face another kind of motion in the coming days—one that tests the confidence of members and those responsible for blocking the will of the Parliament.