Meeting of the Parliament (Hybrid) 25 November 2020
I refer members to my entry in the register of members’ interests as a member of the Faculty of Advocates.
I will begin on a bit of a tangent, and I hope that the reason for doing so becomes clear. There is a well-known play called “A Man for All Seasons”, which tells the story of Thomas More, who, as members will know, was Lord Chancellor of England. In the play, there is a famous scene in which Thomas More debates the distinction between the law on the one hand and morality on the other. He says:
“I know what’s legal, not what’s right. And I’ll stick to what’s legal.”
He also says:
“The currents and eddies of right and wrong ... I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.”
For Thomas More, there was a firm difference between what is legal and what is right. The two are not always the same. Of course, in the end, he went to his death obeying his conscience and doing the right thing, despite the passage that I have just read out. In the final reckoning, that was ultimately more important.
So, we find ourselves here, in the debate. As a matter of law, John Swinney is correct. In Scots law, there is an indisputable right for any recipient of legal advice that is tendered to them to keep that advice private—it belongs to the client.
However, one of the first lessons that is learned by lawyers who tender advice is that anything can happen to that advice. It is not theirs. It does not belong to them. It can be published. That answers the points that Shona Robison and John Swinney made. Any lawyer has to give frank, informed and competent advice—that is their responsibility—but anything can happen to it thereafter.
There is a right—legal professional privilege—and the law states that an individual cannot be forced to waive that right. That is what the law says, but what about the other deeper question that is nagging away: what is the right thing to do?
We are not here to analyse the law or to adjudicate on it. We are not a court; we are a Parliament. We are a Parliament that decisively made its views known about this matter just three weeks ago. We are a Parliament whose committee that was specifically tasked with investigating this affair has had its requests to see the legal advice consistently refused and its deadlines rejected. We are a Parliament whose votes the Scottish Government, on a whim, sometimes decides to respect and sometimes decides to ignore. We are a Parliament that was told by Nicola Sturgeon:
“The inquiries will be able to request whatever material they want, and I undertake today that we will provide whatever material they request.”—[Official Report, 17 January 2019; c 14.]
That was an unequivocal statement.
It is absolutely clear from the ministerial code that the Government can release the legal advice. As Andy Wightman said, the code explicitly provides that ministers can disclose the source or content of legal advice if they feel that the balance of the public interest lies in doing so.
As others have said, on several occasions, the Scottish Government has published legal advice under that frame of provision. To deal with Shona Robison’s point, I note that such legal advice was not just about public policy; it was about things such as infected blood, the child abuse inquiry and trams—investigations into hugely contentious issues involving public funds.