Alex Salmond case: Why Scottish government needs to publish the legal advice – Scotsman comment

Advice from a lawyer is usually provided on a confidential basis and there are a number good reasons why this is standard practice.

Nicola Sturgeon and Alex Salmond on the General Election campaign trail in Inverurie in 2015 (Picture: Andrew Milligan/PA Wire)

This general rule holds true particularly when the ‘client’ is the government of a country and delicate matters of state are at issue.

If such advice were routinely published, this could potentially provide opponents with legal ammunition that could be damaging to good governance and the public interest. It might also make lawyers less likely to provide the full and frank assessment that ministers need to hear for fear of being catapulted into world of politics.

However, the Scottish Government’s ministerial code does allow for legal advice to be released in “exceptional circumstances” if “ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter” and the law officers involved give their consent. The code adds “such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances”.

So who should be the judge of whether reasons are “compelling” or not? Who better than Scotland’s elected representatives? And, with MSPs voting on two occasions for the legal advice to be given to the Holyrood committee investigating the Salmond case, their views are clear.

Yet the Scottish government has continued to ignore the will of parliament, while saying it is still considering what to do.

According to Nicola Sturgeon, who has recused herself from the goverment’s decision, she has “nothing to fear” if the advice is published. And yet the stand-off continues.Given we already know that the Scottish government's investigation into the allegations against Salmond was “tainted with apparent bias" – according to a ruling by the Court of Session – the more ministers continue to stall, the more people will start to believe something even worse has happened.

The credibility and reputation of the Scottish government is now at stake. The public needs to be able to trust its government. When there are genuine concerns about actions behind closed doors, openness is the best way to dispel them.

So, if the government really does have nothing to hide or fear, they should publish the advice and make this plain for all to see.

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