25 November 2020

S5M-23445 Legal Advice (Publication)

The Presiding Officer (Ken Macintosh): The next item of business is a debate on motion S5M-23445, in the name of Murdo Fraser, on legal advice.

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Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

I start by agreeing with Murdo Fraser when he sympathised with the complainers, which was entirely proper.

Let us look at precedents in relation to the disclosure of legal advice. It is worth saying that these precedents all stem from a period when Jackie Baillie sat in the Government and Alex Cole-Hamilton’s colleagues sat beside her.

Answer number 1 was to Alex Neil:

“The Scottish Executive does not generally disclose the legal advice it may have taken on any particular matter. Any such advice would, in any case, be confidential.”—[Written Answers, 14 March 2006; S2W-23743.]

Answer 2 was to me:

“Our policy is not to publish the legal advice we receive, this being covered by solicitor-client confidentiality.”—[Written Answers, 18 January 2007; S2W-30908.]

Answer 3 was to Christine Grahame:

“certain categories of information are exempt from the commitment to provide information ... This includes legal advice.”—[Written Answers, 11 February 2003; S1W-33541.]

Finally, answer 4 was to Fergus Ewing:

“I am not prepared to divulge the terms of the legal advice to Scottish ministers and I am unable to provide the legal advice obtained”.—[Written Answers, 15 June 2004; S2W-08398.]

The Tory motion asks for the Government to provide the legal advice “without any further delay”. A look at the Tory record on disclosing information might tell us whether today’s motion represents gross hypocrisy, opportunism or legal blindness.

One way of learning about what is going on in Government is via freedom of information. The freedom of information legislation is particularly dear to me because the training material that was prepared for officials contained a quote from one of my parliamentary speeches on the subject.

I will give some numbers that illustrate how the Tories, to use a word in their motion, “respect” honouring such requests only in the breach. The percentage of requests granted in full by the Tories in government has declined every year since 2010, from a high of 62 per cent in 2010 to 44 per cent in 2019. The percentage of requests withheld in full has steadily increased from 21 per cent in 2010 to 35 per cent in 2019. Last year, United Kingdom Government departments upheld their original decision in 83 per cent of internal reviews—that is the highest proportion in the past decade. The trend towards greater secrecy in the UK Government is unmistakable, and it has been led by the largest and most powerful Whitehall departments. In the past five years, the Cabinet Office, the Treasury, the Foreign Office and the Home Office have all withheld more requests. I got those figures from a report that was published yesterday by openDemocracy, which reveals that Tory minister Michael Gove’s department has a skunk team that was specifically established to prevent us from knowing what goes on in the Tory Government.

I have not been able to find a single example of legal advice being published, north or south of the border, where the matter relates to litigation. Yes, Governments do occasionally publish legal advice—to be fair to the Tory Government, it did so in 2018 in relation to advice on Brexit—but never advice relating to litigation.

The protection of legal professional privilege is vital to all parties to legal actions. The demand that is being made in relation to this piece of legal advice is simply a cover for the fact that the Tories are unable to properly question witnesses.

At the committee’s most recent meeting on 17 November, the Lord Advocate said:

“That will not prevent me from giving evidence to the committee today about the Government’s legal position from time to time in relation to the judicial review.”—[Official Report, Committee on the Scottish Government Handling of Harassment Complaints, 17 November 2020; c 2.]

Murdo Fraser said that the Lord Advocate refused to answer 27 times, but that is not correct. Only three questions were asked of him, and he repeatedly gave the same answer. The Tories’ failure today lies in them not finding the right questions. After all, the Lord Advocate said that he would answer questions about the Government’s legal position. Because they do not have the questions, we can be certain that seeing legal advice could not answer their questions.

Gross hypocrisy, opportunism or legal blindness? All three, Presiding Officer, all three.


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