Meeting of the Parliament (Hybrid) 03 February 2021
With just four minutes to contribute to the debate, I shall be brief.
I remind members that I am a member of the legal profession, although I am an employment law specialist, not a criminal law specialist.
I listened to Mr Harvie setting out his case for why he believes that ministers should apply to the Court of Session for an unexplained wealth order in respect of Donald Trump’s property transactions in Scotland. I presume that Mr Harvie has satisfied himself that the court would be satisfied that there are reasonable grounds for suspecting that Donald Trump would not have been able to obtain the property with lawfully earned income and, furthermore, that the court would be satisfied that Donald Trump is suspected of involvement in serious crime or is a politically exposed person who is vulnerable to bribery and corruption. I understand that they are the prerequisites for the court to grant such an order.
Should such an order be made, Mr Trump would be required to set out the nature and extent of his involvement with the particular property. He would require to explain how it was obtained, including how any costs incurred in obtaining it were met, and to set out other information in connection with the property that may be relevant. I presume that Mr Harvie feels either that Mr Trump cannot so satisfy the court or that he will fail to do so, such that there may be a presumption that the property is recoverable under any subsequent civil recovery action.
I believe that Mr Harvie’s case is that, although the Crown Office might instigate such an application to the Court of Session of its own volition, he believes that it has chosen not to, in which case, the Scottish ministers may do so. He argues, praying in aid a legal opinion by Aidan O’Neill QC, that the First Minister and her Government can apply to the Court of Session.
Mr Harvie may well be correct that, if there are serious concerns about how Donald Trump financed the purchase of his Scottish golf courses, it might be considered odd that no investigation has ever taken place—but has it not? I note that the Government’s amendment specifically says that the civil recovery unit undertakes an independent investigatory role as an enforcement authority for Scotland under the Proceeds of Crime Act 2002. I listened to the cabinet secretary talking about its independence. Crucially, the amendment says that the unit
“does not confirm nor deny the existence of any investigation taking place.”
Nevertheless, the question whether an unexplained wealth order should or should not be sought surely ought to be a matter for the Crown Office. It is independent, and I am sure that Mr Harvie would agree that the criminal justice system ought not to be, or be seen to be, subject to political pressure.
In essence, my worry is that, although the legal opinion may say that the Government could petition the Court of Session, that does not mean that it should. One cannot help but wonder whether to do so would risk compromising the integrity of any prosecution and judicial process, as well as the perception of the independence of the Crown Office.