Meeting of the Parliament (Hybrid) 25 November 2020
I begin by reiterating what I said in the debate on 4 November. I made three points then on the issue of legal advice, and I wish to repeat them.
First, as has been mentioned by other members, the protection of legal professional privilege has been relied upon by Scottish and UK Governments of all political hues, and that must be respected.
Secondly, the continued existence of legal professional privilege for the Scottish Government helps to ensure the rule of law and the administration of justice.
Thirdly, the Scottish ministerial code recognises the existence of legal privilege. It is clear that ministers can say that legal advice has been obtained, but must not divulge it. The exceptions that were made previously were on issues of public policy, which is not the case here.
In thinking about the debate, in a week when we have seen further evidence of the effectiveness of minimum unit pricing, I reflected on my time as a minister. In particular, that got me to reflect on the importance of the legal advice that we, as ministers, received at that time.
I have also reflected on whether that legal advice might have been different, had the lawyers who provided it been concerned about its possible release. Given the legal issues that are involved and the subsequent legal challenge, I think that I am right to reflect upon that. I do not know whether that legal advice would have been different, but I do know that it is crucial that those who give advice to ministers do so in a full and frank manner, and are not affected by concerns about its subsequently becoming public. Whatever ends up happening in this case, it is crucial that no precedent is set that could affect future important policy decisions. I hope that the Government will reflect on that.
The ministerial code is very clear about the public interest in ensuring that the Scottish Government can have confidential communications with its lawyers. I understand that the Lord Advocate 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. As the amendment in the name of John Swinney confirms, the Lord Advocate
“will be writing further to the Committee ... and stands ready to provide additional information as the Committee requires.”
I hope that the Parliament will not have to spend more debate time discussing the issue, given that we are in the middle of a pandemic. There are far more pressing issues for the Parliament to consider.
17:28